Wisconsin Elections Board in Contempt for Inaction on Voter Rolls

People vote in Kieler, Wis., on Nov. 6, 2018. (Nicki Kohl/Telegraph Herald via AP, File)

PORT WASHINGTON, Wis. (CN) – A Wisconsin judge held the state elections board in contempt Monday in the latest stage of a closely watched legal battle over voter rolls, which has potentially stark implications for 2020 elections in the key battleground state.

The fight over Wisconsin’s voter rolls began when the conservative Wisconsin Institute for Law & Liberty, or WILL, 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 elections commission mailed those notices to more than 230,000 voters in mid-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. Of those 230,000, roughly 209,000 have not requested continuation at their current address or registered at another one.

Ozaukee County Circuit Court Judge Paul Malloy agreed with WILL’s contention on Dec. 13 that the board must adhere to the 30-day limit, issuing a writ of mandamus forcing the commission to change the registration status of every voter who did not respond to its October letters within the 30-day timeframe.

The commission, however, did not carry out the purge and maintains that its actions are in line with state law regarding updates to voter rolls.

WILL’s founder and president Rick Esenberg expressed dismay at the board’s refusal to act in court Monday, saying he did not “relish being here” and that in his 39 years of practicing law, “I have never seen a public body defy a court order this way.”

Esenberg pointed out that a pending appeal or pending stay motion does not invalidate a circuit court order.

Assistant Attorney General Karla Keckhaver, appearing on behalf of the commission, urged Malloy to give the state’s upper courts a chance to fully weigh in, “given the fact that this is a novel issue of statewide importance.”

Malloy took only half an hour before a full courtroom Monday to grant WILL’s motion and find the elections board in remedial contempt.

“If people are free to disregard a court’s order, how do you enforce that?” the judge questioned. “What happens to our justice system?”

Malloy also took certain commissioners to task for public comments they have made over the choice to ignore his order pending a high court decision, saying he “found the conduct disrespectful.”

“They created this situation by disregarding the 30-day notice on their own initiative,” Malloy said, offering no guidance on how the commission should follow his mandates.

Malloy’s decision imposes a $250 per day fine for three Democratic commissioners whose resistance to the purge has contributed to the commission’s deadlock and a $50 per day fine for the commission itself for each day that the relevant voters are not purged.

“I cannot be any clearer than this,” Malloy said. “They have to follow my order.”

The commission has its next meeting Tuesday, at which point it is expected to make a move on Malloy’s order and determine the status of thousands of registered voters.

On Monday evening, the Wisconsin Supreme Court issued a decision denying WILL’s petition for the high court to bypass the court of appeals and take up the case.

The state Supreme Court’s split decision Monday did not include a detailed reasoning as to why it denied the petition but conservative Justice Rebecca Grassl Bradley penned a scathing dissent blasting the majority’s decision.

Bradley called out the majority for shirking its “institutional responsibilities to the people who elected us to make important decisions” that deserve immediate attention.

She lambasted the decision to send the case back to the appellate court, which will draw out the resolution of the case during this busy election year.

“Leaving this case with the court of appeals may result in the related federal court litigation proceeding in tandem, with the issuance of potentially conflicting orders sowing confusion in the conduct of Wisconsin’s elections,” Bradley wrote.

The justice added that she believes the court’s decision to pass on the case “irreparably denies the citizens of Wisconsin a timely resolution of issues that impact voter rights and the integrity of our elections.”

Bradley was joined in her dissent by Chief Justice Patience Roggensack and Justice Annette Ziegler, both conservatives. Justice Daniel Kelly, also conservative, sat out the court’s decision, as he previously recused himself due because he is up for reelection in April.

The drama over the voter rolls has continued to ratchet up over the last month as the fracas officially entered an election year.

Monday’s hearing attracted dozens of protesters from workers’ rights and voting rights groups, who stood shivering in front of the Ozaukee County Justice Center chanting and holding signs reading “protect our votes” before filling the courtroom’s packed gallery.

The Reverend Greg Lewis with Souls to the Polls, a voting rights group which turned out for Monday’s protest along with activists from the local Fight for $15 chapter, stood before a crowd of reporters and said “it saddens me that we have to fight like this,” but warned that “this fight is just beginning.”

“If those voters come off the registration list, there’s a huge fight coming,” Lewis said.

A separate federal suit filed in December by The League of Women Voters also challenged the voter rolls purge, arguing deactivation of the registrations would be a violation of constitutional due process protections.

The Legislature has moved to intervene in that suit, although has not been cleared to do so. A local branch of the Service Employees International Union has also attempted to intervene in WILL’s state suit.

The rancorous dispute over Wisconsin’s voter rolls is intensified by several critical elections in 2020, including local primaries on Feb. 18 and the crucial contest in April for a seat on the Wisconsin Supreme Court, in which Kelly is up for reelection.

In addition to statewide elections this year, Wisconsin is seen as a marquee battleground in November’s presidential election. President Donald Trump won the state by less than 25,000 votes in 2016, which was seen as pivotal to his upset victory over Democrat Hillary Clinton.

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