The justices held local municipalities, not the state elections commission, are responsible for updating the registration of voters who may have moved, delivering a blow to conservatives who wanted such registrations thrown out.
MADISON, Wis. (CN) — The Wisconsin Supreme Court ruled Friday that the state elections commission is not bound by state law to quickly purge from the voter rolls the registrations of people who may have moved, leaving tens of thousands of contested registrations on the lists for now.
The more than two-year fight over the Badger State’s voter rolls began in November 2019 when three taxpayers in suburban Milwaukee sued the bipartisan Wisconsin Elections Commission, or WEC, claiming it violated state law by refusing to deactivate registrations of voters who did not give timely responses to formal notices inquiring about address changes.
After the notices went out to around 230,000 voters a month before the suit was filed, the commission held off on updating any flagged inconsistencies on the voter lists, in part because a 2017 glitch purged tens of thousands of properly registered voters. The initial 230,000 potential movers has since shrunk to roughly 72,000 as voters have updated their registrations or confirmed that they never moved.
The Wisconsin Institute for Law & Liberty, or WILL, a local conservative advocacy group, represented the taxpayers and charged that state law requires the commission to promptly change the registrations of those who may have moved from eligible to ineligible. The dispute quickly became partisan, with conservatives arguing for purging the rolls in the spirit of election integrity, whereas liberals resisted because it may result in the disenfranchisement of voters with sound registrations.
Ozaukee County Circuit Court Judge Paul Malloy sided with WILL in December 2019, ordered the WEC to immediately purge flagged registrations from the voter rolls and found the commission in contempt when it refused to comply with his writ of mandamus because the commissioners believed they did not have to under state law.
A three-judge panel of the state appeals court stayed and blocked Malloy’s orders within two months in keeping with the WEC’s understanding of its responsibilities under Wisconsin law. The case was then argued last September before the Wisconsin Supreme Court, which has a 4-3 conservative majority.
Justice Brian Hagedorn, a conservative, authored the high court’s 5-2 majority opinion released Friday, noting that the decision does not concern whether the statute requiring the voter rolls to be updated is valid, but rather whether the statute “places a positive and plain duty on the Wisconsin Elections Commission to do what the law requires.”
“We conclude that it does not,” Hagedorn said.
State law charges “the municipal clerk or board of election commissioners” with keeping the voter rolls up-to-date, and much of the legal wrangling over the dispute has hinged on whether the WEC constitutes a “board of election commissioners,” an argument Hagedorn deemed “plainly incorrect.”
“[The relevant statute] does not apply to the commission; there is no credible argument that it does,” Hagedorn said. He was joined in the majority by liberal Justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky, in addition to fellow conservative Chief Justice Patience Roggensack.
Justice Rebecca Grassl Bradley, joined by Justice Annette Ziegler, countered with a 22-page dissenting opinion on Friday, saying that the WEC is simply dodging one of its longtime responsibilities and that “the majority’s circumscribed statutory interpretation leaves WEC off the hook for its violations of Wisconsin’s election laws.”
In addition to believing the majority’s selective reading of Wisconsin law failed to order the WEC to do what it is legally supposed to do, Grassl Bradley took the majority to task for letting the commission skate on the contempt order it was hit with after defying the circuit court’s decision demanding it update the voter lists.
“In this case, WEC shirked its duty, flouted the circuit court’s orders without consequences, and knowingly left ineligible voters on Wisconsin’s voter rolls,” she concluded after declaring that the majority opinion “effectively condones WEC’s scorn for the judiciary by failing to even admonish WEC’s brazen disrespect for the authority of our courts.”
Partisans on both ends of the spectrum celebrated or denounced the state high court’s decision on Friday.
The League of Women Voters of Wisconsin, which was blocked from intervening in the case, dubbed the majority decision “a complete victory for voters’ rights,” with the group’s executive director Debra Cronmiller saying “we are so pleased the supreme court has ensured that no legitimately registered voter will unnecessarily be made to register in order to exercise their right to vote.”
WILL’s founder and chief counsel Rick Esenberg called the ruling “a disappointing setback for those who expect Wisconsin state agencies to follow the law.”
“WILL remains committed to the rule of law and to a reasonable set of election rules that acknowledges that the right to vote involves both convenience and assurances of accuracy and integrity,” Esenberg said, adding that is now the task of the Wisconsin Legislature to fix the law in question.
Republicans at the top of the GOP-controlled Legislature’s Assembly and Senate did not immediately respond to questions about the status of any attempt to change the law on Friday.