New twists in Wisconsin’s voter purge case

There was a flurry of new developments in the Wisconsin voter purge case on Monday: 

• Ozaukee County Judge Paul Malloy found the state Elections Commission in contempt of court for failing to immediately purge more than 200,000 voters from the rolls after he ordered them to do so. He imposed fines of $50 per day on the commission for as long as it fails to purge the rolls, and $250 per day on three commissioners who voted not to purge the roles immediately.
• The Department of Justice filed an appeal asking for an emergency stay of that order. 
• The League of Women Voters filed a motion in federal court asking for an emergency hearing on its constitutional challenge to the purge. 
• The Wisconsin Supreme Court issued an order refusing to take the case and sending it back to the state court of appeals. 

By a vote of 3-3, the Supreme Court declined a request to take the case from the conservative Wisconsin Institute for Law & Liberty. That decision is particularly significant because the state court of appeals was waiting to act on a motion for a stay on the purge until the State Supreme Court decided whether it would take the case.

Conservative Justice Brian Hagedorn joined liberal Justices Ann Walsh Bradley and Rebecca Dallet in rejecting WILL’s request to take the case. Justice Daniel Kelly recused himself, citing his candidacy in a spring election that could be affected by the voter purge.

Conservative Justices Rebecca Bradley, Annette Ziegler and Patience Roggensack joined a dissent charging that the Court’s decision not to take the case “irreparably denies the citizens of Wisconsin a timely resolution of issues that impact voter rights and the integrity of our elections.”

The case could still ultimately end up in the State Supreme Court. But the effect of Monday’s decision is to slow things down, which means the purge might not affect the spring elections, including the election for Supreme Court. Depending on the outcome of the various court cases, it could even be delayed beyond the November presidential election. 

The more than 200,000 voters who are being ordered stricken from the rolls because they might have moved is nine times larger than Donald Trump’s margin of victory in Wisconsin in the 2016 election. 

The Elections Commission is scheduled to meet Tuesday and will discuss the voter purge and how to resolve such issues as what to do about absentee ballots for the 7th Congressional District special election in February, which have already been mailed to voters who could be on the purge list.

How it started

The voter purge fight began when WILL filed a complaint in October alleging that voters who did not respond to notices that information from the multi-state Electronic Information Registration Information Center (ERIC) showing they had moved were not changed from eligible to ineligible voting status after 30 days, as the group asserts is required by Wisconsin law.

The Elections Commission dismissed the complaint.

“The Commission is confident that it is complying with Wisconsin law,” commission administrator Meagan Wolfe said in a statement responding to WILL’s complaint. “The Legislature has not enacted any specific processes for the Commission or local election officials to deal with information about voters which the state receives from ERIC,” she added.

That response prompted WILL to file a lawsuit in Ozaukee County Circuit Court.

A review of voter registration records by the Center for Media and Democracy (CMD) found that, due to the voter purge that began after Wisconsin joined ERIC in 2016, the number of registered voters in Wisconsin dropped by 697,363 between January 2017 and February 2018, “and that significantly more voters were purged from the rolls in Democratic-leaning counties than Republican-leaning counties.”

As part of the ERIC program, the state sent postcards to voters who were suspected of moving. Ninety percent of voters did not respond to the cards, CMD reported, and were purged from the rolls — even if they had not actually moved. 

Because of the high number of wrongful voter purges, the Elections Commission explained that it adjusted its approach in 2019.

“When setting policies for dealing with the 2019 mailing to voters who may have moved, the Commission based its decisions on lessons learned from the 2017 movers mailing,” the commission stated in a response to the WILL complaint.

Furthermore, the commission pointed out, the letter to movers did not say they would be purged from the rolls if they did not respond within 30 days. Because WILL’s complaint demands that voters be taken off the roles, “the delayed filing of the complaint also prejudices the rights of those recipients who are not on notice of that consequence for failing to respond.”

The League of Women Voters filed a complaint in federal court on Dec. 17 claiming that the voter purge violates the U.S. Constitution since the notice voters received did not warn them that they faced being removed from the rolls if they did not respond, nor were they told the timeline in which they must take action to remain registered to vote. 

However, if the elections commission were to send out a new notice that met all of the requirements of the US Constitution, instead of deactivating the voters immediately, the request for a preliminary injunction that the League has asked the judge to issue — ordering the elections commission not to deactivate the voters’ registrations — would be moot.

The Supremacy Clause of the U.S. Constitution requires the elections commission to comply with the federal court’s ruling and not a ruling in the state courts if those rulings are in conflict.