On Friday, Wisconsin’s 4th District Court of Appeals overturned a lower court’s order to remove more than 200,000 voters from the rolls, and vacated a contempt order against the Wisconsin Elections Commission, as well as individual commissioners, for not doing so promptly. It was a victory for voting-rights advocates and Democrats who saw the purge as part of a larger voter-suppression strategy by Republicans and their rightwing allies.
But the voter-purge fight is far from over.
The Wisconsin Institute for Law & Liberty (WILL) — the conservative legal group that sought the purge in the first place — will likely appeal the case to the Wisconsin Supreme Court.
Among the questions that will determine what comes next are whether the Supreme Court takes the case and how soon.
The Supreme Court could accept the case for argument through its normal process, in which case a decision would not come down until after the Wisconsin presidential primary on April 7, which is also the date of a closely watched race for one of the seats on the court.
In the interim, however, the state Supreme Court could decide to put a hold on the Court of Appeals decision and restore Ozaukee County Judge Paul Malloy’s order to purge the voter rolls, as well as the contempt citation for the Elections Commission.
It takes three votes for the state Supreme Court to accept a case, and four votes to change the law.
How two conservative justices will vote is hard to predict, and will help determine the future of the voter purge.
Justice Dan Kelly, a Scott Walker appointee who faces a challenge for his Supreme Court seat in the upcoming April election, recused himself from the voter purge case in December.
The reason for Kelly’s recusal was widely believed to be the potential conflict created by his own election bid, which could be affected by the purge. But Kelly did not offer a reason, and could reverse his recusal at any time.
Justice Brian Hagedorn, the newest member of the court, surprised many observers when he voted against WILL’s petition to the Supreme Court to bypass the lower courts and take the voter purge case before the Court of Appeals could rule.
Now that the appeals court has issued its decision, “I think there’s some chance the Supreme Court won’t take the case,” says attorney Jeffrey Mandell, who represents the Service Employees International Union (SEIU), which has filed briefs in opposition to the plaintiffs’ interpretation of the law in the voter purge case.
“What we saw from the Court of Appeals today was a very thorough, exhaustive explanation of why Judge Malloy was wrong,” Mandell adds. “We don’t see 45-page opinions from the Court of Appeals very often … There’s some possibility that the justices look at the Court of Appeals decision and say ‘I don’t see any obvious holes here.’”
In its 45-page ruling, the Court of Appeals took pains to point out that the relevant Wisconsin statute clearly states that updating the voter rolls for people who have moved is the responsibility of municipal officials, not the state elections board. Thus, the Wisconsin Elections Commission, and its individual members, cannot be held responsible for failing to purge the rolls of voters who may have moved.
But the decision also raises questions about what the state’s 1,922 municipal elections officials might do next. The Elections Commission has made the list of more than 200,000 Wisconsinites who may have moved public, and different municipal officials could make different decisions about what to do with that information.
“Certainly we expect the Wisconsin Elections Commission will give all these officials around the state good advice about what to do,” says Mandell. He points out that the statute that gives municipal officials the power to strike people from the rolls also requires that they send a notice to voters first — something that has not happened.
Meanwhile, the League of Women Voters has pursued a separate, federal case to stop the purge. And, if the state Supreme Court reverses Friday’s decision, civil rights groups are likely to join in a federal lawsuit to argue that the purge is a violation of voting rights and disproportionately affects minority voters.
Stay tuned. There are sure to be more twists and turns on the voter purge.