Friday, June 9, 2023 | Back issues
Courthouse News Service Courthouse News Service

Wisconsin Conservatives Seek High Court Review of Voter Rolls

A Wisconsin-based conservative group asked the state supreme court Wednesday to review a decision leaving over 200,000 people who may have moved on the voter rolls, putting pressure on the justices to fast-track resolution of a lawsuit with huge implications for elections this year.

MADISON, Wis. (CN) – A Wisconsin-based conservative group asked the state Supreme Court to review a decision that keeps more than 200,000 people who may have moved on the voter rolls, putting pressure on the justices Wednesday to fast-track resolution of a lawsuit with huge implications for elections this year.

While conceding that the high court will not be able to decide on the case before the next statewide election on April 7, which includes a Wisconsin Supreme Court race and the Democratic presidential primary, three taxpayers represented by conservative advocacy group Wisconsin Institute for Law & Liberty, or WILL, asked the high court to expedite its review of the appellate court’s decision.

Next month’s election features a hotly contested race for a seat on the high court, with current conservative Justice Daniel Kelly facing off against liberal Dane County Circuit Court Judge Jill Karofsky. Kelly has previously recused himself from litigation over the Badger State’s voter rolls.

The April 7 election also features Wisconsin’s presidential primary, when Democratic voter turnout is anticipated to be high. It is just one of multiple critical 2020 contests that have put the acrimonious fight over the state’s voter rolls in the national spotlight.

The fracas began when WILL and the three taxpayers from suburban Milwaukee sued the bipartisan Wisconsin Elections Commission last November, claiming it violated state law by refusing to deactivate registrations of voters who did not respond within 30 days to formal notices asking about possible address changes. The commission mailed those notices to more than 230,000 voters last October but had decided to wait until 2021 to update any flagged inconsistencies in the voter lists, a precaution stemming partly from a 2017 glitch that triggered the removal of tens of thousands of voters.

Ozaukee County Circuit Court Judge Paul Malloy agreed with WILL’s contention in December and issued a writ of mandamus ordering the commission, made up of three Republicans and three Democrats, to immediately purge any flagged voters. Malloy then found the commission and its three Democratic members in contempt in January when they refused to carry out the purge on the basis that the commission’s inaction is in line with state law governing voter lists.

That contempt finding, handed down after a quick hearing in a Port Washington courtroom packed with dozens of protesters, also hit the commissioners and the commission with fines of $250 per day and $50 per day, respectively, for each day the rolls were not purged.

WILL asked the Wisconsin Supreme Court to settle the matter, but the high court declined the same day as Malloy’s contempt finding in an emphatically divided ruling, sending the dispute back to the appellate court.

A three-judge panel of the District IV Court of Appeals stayed both of Malloy’s orders in January before blocking them in February, aligning with the commission’s rationale regarding protocol and timeline for purging the voter rolls.

The next move again lies with the state supreme court in light of WILL’s Wednesday petition, which reasserts the commission is ignoring its statutory responsibility to ensure clean voter rolls in what is essentially a repeat of its original attempt to get the high court to handle the suit.

The difference this time around is the fresh petition specifically challenges arguments made in the appellate court’s February decision, which was penned by Judge Michael Fitzpatrick. Fitzpatrick was joined in his opinion by Judges JoAnne Kloppenburg and Jennifer Nashold.

Fitzpatrick made the case that the statutes WILL cites actually only refer to a “board of election commissioners” which is a municipal governmental body the legislature established in Milwaukee, not the “commission,” or the state elections commission based in Madison. Fitzpatrick pointed out that the statute separately refers to each entity over 100 times, indicating the legislature’s intention to endow different responsibilities to different bodies.

WILL’s petition, signed by deputy counsel Lucas Vebber, argues that while the election officials responsible for the rolls “were once municipal clerks and a municipal board of election commissions existing in Milwaukee,” the rolls are now maintained by the Wisconsin Elections Commission, technically making it and its members the “clerks and elections commissioners” referred to in the statute.

The petition goes on to argue that “any other reading of the law would render [the statute] a dead letter because clerks and municipal election commissioners no longer maintain the rolls,” a reading it argues would also leave Wisconsin’s maintenance of the rolls inconsistent with federal law.

In a statement put out on Wednesday, Rick Esenberg, WILL’s president and general counsel, called the battle over the voter rolls “a critical matter for our state.”

“Wisconsin voters deserve to have confidence in the integrity of this year’s elections,” Esenberg said. “We hope the supreme court agrees to review this case and provide clarity on the actions of the Wisconsin Elections Commission.”

The commission itself declined to comment on WILL’s petition Wednesday.

Having displayed ambivalence regarding the voter rolls drama already, it remains to be seen how the high court will rule should the justices choose to review the appellate court’s decision. Conservative Justice Brian Hagedorn sided with the court’s two liberal justices when the high court turned down the case in January, offering no rationale for his decision.

It should also be noted that any decision from the high court will come after the election for Kelly’s seat on the court is decided. Even if Kelly loses that election, he will remain in his seat until at least August. WILL mentioned in its petition that there is a partisan primary election on Aug. 11, before November’s general election.

Categories:Appeals, Government, Law

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.