Update: On Friday afternoon Ozaukee County Circuit Judge Paul Malloy ordered the state to purge the rolls of voters who may have moved. He also denied the League of Women Voters’ petition to intervene in the case. In issuing a writ of mandamus, the judge took the strongest action he could take, ordering the state to immediately comply and refusing to stay his order while the defendants in the case appeal.
Friday the 13th is the first day in court for the Wisconsin Institute for Law & Liberty (WILL) in its lawsuit seeking to force the Wisconsin Elections Commission to purge 234,000 Wisconsin voters from the rolls.
A judge in Ozaukee County Circuit Court will hear motions from the League of Women Voters of Wisconsin, which seeks to intervene in the case, and from WILL, which seeks an injunction to force the state to comply with its demand that the voters be purged.
WILL filed the lawsuit against the Elections Commission for not purging the rolls of voters who were sent a notice that information from the multi-state Electronic Registration Information Center (ERIC) showed they had moved. Those voters who did not respond to the notice within 30 days must be purged from the rolls, WILL argued in a complaint filed in October alleging that the Elections Commission had violated Wisconsin law.
The Elections Commission, which began giving voters a longer time to respond in 2019 — in response to a history of wrongful voter purges — dismissed the complaint. WILL filed the current lawsuit on Nov. 13.
According to an analysis by the Milwaukee Journal Sentinel, the voter purge would cause tens of thousands of voters to be removed from the rolls, and would disproportionately affect Democratic voters in large cities and on college campuses.
“The state sent letters to more than 35,500 of Milwaukee’s nearly 290,000 registered voters, or 12%. Similarly, it sent letters to more than 18,000 of Madison’s nearly 173,000 registered voters, or 11%,” the Journal-Sentinel reports.
On Dec. 2, the commission voted to ask the state legislature for guidance on the issue. “Given the near decade long assault on voter rights by the Republicans who control the state Senate and Assembly, you have to wonder, what were the commissioners thinking,” Analiese Eicher, director of One Wisconsin Now, which brought a federal voting rights lawsuit against legislative leaders, wrote.
One of the commissioners, Robert Spindell, who was appointed by Senate Majority Leader Scott Fitzgerald in October, exacerbated those concerns when he said during the commission meeting that he had met with WILL before he was appointed and encouraged them to file the lawsuit. Spindell voted against asking the legislature for guidance, saying he thought the court case should be allowed to play out.
The legislature has few session days in which to pass legislation in response to the commission’s request, but the authors of the original legislation sent a letter to the commission asserting that the 30-day rule should apply. WILL included that letter in its court filings.
Problems with ERIC
The League of Women Voters will argue Friday that it ought to be allowed to intervene in the case, in part because the Elections Commission is not adequately representing the League’s interests in defending voters’ rights.
Until WILL filed the current lawsuit, the League argues in its brief, the Elections Commission wrongly characterized the ERIC “movers” list as “reliable” and “largely accurate.” (The relevant state statute holds that the 30-day rule applies when elections officials receive “reliable information” that a voter has moved and the voter does not respond to a mailed notice.)
In its brief, the League points out that in March 2018, “Commission staff reactivated the voter registration of 12,133 voters whose ERIC movers data was inaccurate and should not have been deactivated.”
The deactivation of these registrations caused problems for the 2018 Spring primary, the League adds.
Among those wrongfully purged were voters who had registered a vehicle at a business address, vacation home or child’s college address, as well as college students who obtained a driver’s license when they were temporarily living away from home.
The commission’s more recent acknowledgments that there are problems with ERIC data do not amount to a sufficient defense of voters’ interests, the League maintains.
The commission does point out in its brief that nowhere does the statute specifically mention ERIC.
“The plaintiffs’ position seems to be that the ERIC movers data must be assumed to be inherently ‘reliable information,’ but they offer no reason to support their assumption,” says Douglas Poland, an attorney for the League of Women Voters. “And there certainly is nothing else before the court that should lead the court to reach that conclusion.”
“Even if you were to go outside the statute to determine whether the ERIC movers data is ‘reliable information,’” Poland continues, “the only information before the court is that in 2017, the Elections Commission found the error rate to be at least 7%, which would impact thousands of Wisconsin voters. Contrary to what the plaintiffs say, that can only mean that the ERIC movers data is inherently unreliable.”
Like a test for a disease
Rick Esenberg of WILL compares ERIC’s accuracy to that of a reliable medical test. “If you had a test for some type of disease and it said 95% of the time accurately that you have the disease,” he says, “a reasonable person would take the next step if you got a positive test result.”
Plus, Esenberg points out, in an argument that could be seen as bolstering the League’s case that it should be allowed to intervene, “It’s the state of Wisconsin that pays money to belong to ERIC.”
Esenberg acknowledges that, “There might be close calls that have to be made,” when it comes to election officials’ discretion in determining what amounts to “reliable information” under the law, but, he adds, “‘reliable’ is not an esoteric term or one that’s impossible to understand.”
“We can infer that the statute doesn’t require that the data or information is perfectly accurate, because .. what you do is you send a notice to the voter and you ask them.”
“It seems to me reliable means sufficiently accurate that a reasonable person would rely on it,” Esenberg adds.
Voter suppression strategy
One Wisconsin Now maintains that the WILL lawsuit is a knowing strategy to suppress the votes of likely Democratic voters ahead of the spring Supreme Court primary. The group points out that Dan Kelly, the conservative justice in that race, has received financial support from WILL board members and has ruled in the group’s favor.
Esenberg acknowledges that the lawsuit is timed to have an effect before the next election, but says the aim is to give clear guidance to elections officials before voters go to the polls.
As for the charge that the lawsuit is part of a voter suppression strategy, he says, “If it were intended as voter suppression, it would be pretty ineffective voter suppression, because it doesn’t really prevent anyone from voting.”
Since Wisconsin has same-day voter registration on election day at the polls, de-registering voters should have no real effect, Esenberg argues: “This doesn’t really suppress any votes.”
He points to Wisconsin’s exemption from federal Motor Voter law, which would require a longer waiting period before purging the rolls.
“It’s long been recognized that there is no need to do that in a state with same-day registration,” he says.
Esenberg hopes that the court will issue an injunction on Friday. To achieve that goal, WILL will have to demonstrate “irreparable harm” to the plaintiffs if the voter rolls are not purged.
Esenberg asserts that the plaintiffs can make it over that high bar because “there’s taxpayer standing in Wisconsin which is very broad. Because the Elections Commission spends money in maintaining or not maintaining the rolls, taxpayers have the right to go to court and challenge them.”
Then there’s the issue of voter fraud. Esenberg acknowledges that there is no specific evidence of voter fraud attached to the current lawsuit. But, he says, “The statute is designed to reduce the possibility of fraud.”
“It’s a ballot integrity measure in the sense that if you have a lot of people registered at an address where they no longer reside, there’s a potential for various types of fraudulent activity. Now, that may or may not occur, but the rules are there for a reason.”
In its brief opposing WILL’s motion for a temporary injunction, the Elections Commission argues that the voters and taxpayers who are WILL’s clients “cannot show that they will suffer irreparable harm if the Court does not order the Commission to deactivate the registration status of other [voters].”
Furthermore, the commission argues, the purpose of a court injunction is to protect the status quo while a lawsuit proceeds through the courts. The plaintiffs in this case “cannot make a showing that a temporary injunction is necessary to preserve the status quo. On the contrary, a temporary injunction would do just the opposite: potentially deactivate tens of thousands of properly registered electors without notice.”
Whatever the outcome of Friday’s hearing, there will almost certainly be an appeal.