PORT WASHINGTON, Wis. (CN) - A Wisconsin judge ruled Friday that the state elections board has no legal authority to decline to update voter rolls and purge those who may have moved, ordering it to remove 234,000 names.
The underlying lawsuit – brought last month by voters represented by Richard Esenberg, founder and president of conservative advocacy group Wisconsin Institute for Law & Liberty, or WILL – contends that the bipartisan Wisconsin Elections Commission violated state law by refusing to deactivate registrations of voters who do not respond within 30 days to formal notices inquiring about possible address changes.
WEC mailed the notices referred to in the suit to approximately 234,000 voters in mid-October but had decided to wait until 2021 to update any flagged inconsistencies in the voter lists.
WILL sued WEC on Nov. 13, a month after it filed a complaint directly with the elections board, which the board chose to ignore as untimely.
The conservative group asked for a writ of mandamus forcing WEC to change the registration status for every voter who did not respond to its October letters, or temporary injunctive relief failing that.
Ozaukee County Circuit Judge Paul Malloy began Friday’s hearing by denying the League of Women Voters of Wisconsin’s motion to intervene in the suit, finding that “they are talking about a much more complex litigation than what I’m looking at” and “their interest is just not direct enough.”
Malloy expressed skepticism as to why the voting rights group did not intervene in 2017 when a Wisconsin voter list maintenance program triggered the removal of tens of thousands of voters. This glitch was part of WEC’s rationale for extending its timeframe to update voter rolls.
The League filed its motion to intervene on Nov. 22, arguing in part that the Wisconsin Department of Justice and WEC are not litigating the case aggressively enough.
Moving on to the heart of the matter, WILL founder Esenberg stressed that the case was one of narrow statutory instruction, which is not discretionary on the part of WEC. The statute he mentioned outlines the 30-day timeframe to make any necessary changes based on evidence that those voters may have moved.
“WEC does have the power to promulgate its own rules, but it did not do that in this case,” Esenberg said. “More importantly, it failed to comply with its statutory requirement.”
Assistant Attorney General Karla Keckhaver, arguing on behalf of WEC, maintained that the board is in line with the law regarding keeping voter rolls accurate, a process for which it is free to set its own timeframe.
“Looking at the plain text of the statute, it only applies to municipal clerks and municipal boards of election commissioners,” she said.
Keckhaver also made the point that seeking to invalidate as many as 234,000 voter registrations was a major change in the status quo, not maintenance.
But Malloy promptly sided with WILL in his ruling from the bench.
The judge said “there’s a huge disconnect” between the logic that WEC has authority to make its own rules and the power to update registrations but that it is not statutorily required to do so.
“In my mind, it is a clear, positive duty for the commission to update the voter rolls,” Malloy said of the state law at issue.
Malloy issued the writ of mandamus that WILL requested requiring WEC to comply with the 30-day timeframe, although he admitted that “he does not know how they will do that.”
Keckhaver immediately interjected and requested a stay of Malloy’s order, stressing that “this would create chaos to do this right now” since there are multiple important elections coming up, including a primary as soon as February, and a lot of work to do in order to update the voter lists.
Malloy declined to issue the stay.
For its part, WEC voted 5-1 at a scheduled meeting on Dec. 2 to begin talks with the Legislature with the aim of setting up clearer, more standardized rules for purging the state’s voter rolls.
Wisconsin is one of 28 states, plus the District of Columbia, enrolled with the Electronic Registration Information Center, or ERIC, a nationwide database that helps states keep their voter roll information accurate. One thing ERIC does is flag people who moved, which the WEC then reviews internally for accuracy.
Liberal groups in the state, including One Wisconsin Now, condemned WILL’s suit as a tactic to remove tens of thousands of registered Wisconsinites from voter polls before upcoming elections in spring 2020. This includes a crucial election in April for a seat on the Wisconsin Supreme Court in which conservative Justice Daniel Kelly is up for reelection.
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