WILL tells Supreme Court that 5% error rate in voter purge is okay

A purge of that size would result in 6,500 voters being wrongly kicked off the voter rolls in Wisconsin

Kaul oral arguments
Wisconsin Attorney General Josh Kaul argues against the purge of nearly 130,000 voters. (Screenshot | Wisconsin Eye).

No clear indication was given on how the Wisconsin Supreme Court would rule in a case to decide whether nearly 130,000 Wisconsin voter registration records should stay on the voter rolls after oral arguments were held Tuesday

At issue in the case is the ERIC Movers list, a database maintained by more than 30 states that is supposed to help elections administrators track when voters have moved and need to update their registration. Under federal and state law, officials are supposed to keep accurate and current voter rolls. 

In 2019, the Wisconsin Elections Commission (WEC) sent a mailer to more than 200,000 voters saying they are believed to have moved. The lawsuit, brought by conservative group Wisconsin Institute for Law and Liberty (WILL), says that because the WEC sent the mailer to those voters and many did not respond and update their registration, they should be removed from the rolls. 

But the state statute that mandates maintenance of the voter list also requires that the information used be reliable. This led liberal Justice Jill Karofsky to ask how WILL defines reliability when it comes to the prospect of wrongly removing voters who actually haven’t moved. 

“It seems to me there is quite a bit of concern about the reliability of this list,” Karofsky said. 

WILL is arguing that the voters should be removed even though it admits the list is at least 4-5% wrong — which is the reason the WEC chose not to use this data to remove voters. The WEC actually states the list could be more inaccurate than that and in an amicus brief the League of Women Voters said the list could be 7% wrong. 

But even at WILL’s estimated 5% error rate, using the ERIC list to purge voter registrations would result in 6,500 voters being wrongly kicked off the voter rolls. 

“ERIC provided a movers list, we now have information that might indicate a voter has moved,” WILL lawyer Rick Esenburg said. “It’s quite clear from the numbers themselves, in which the list was overwhelmingly accurate. In fact, WEC itself says that this is a largely accurate list. If we look at the number of voters, and 2017 is a perfect example, where we went through four different elections cycles following the mailing of this list in 2017 and less than 5% of the people that were on that list either confirmed that no they still lived at the address they were registered or presented to vote from that address at the polling place.”

Esenburg is referring to a voter purge in 2017 when more than 300,000 voters were removed from the lists. He said later in the hearing that the amount of voters wrongly purged in that instance was okay. 

“I’m a lawyer so I don’t do math well but it’s about 14,000 out of 340,000, which by my rough count is somewhere short of 5%,” he said. “The answer to the question is yes, an accuracy level of that magnitude is sufficient for us to conclude that the list is reliable because the statutory obligation here does not say we receive this information and deactivate these voter records. It requires we take an additional step.” 

Being removed from the rolls means the voter would need to re-register at their address, something voters in Wisconsin can do in-person on election day, though if the voter wasn’t aware they’d been removed they might not bring the proper documentation to their polling place. 

Wisconsin Attorney General Josh Kaul, who argued the case on behalf of the state, said that forcing the WEC to use inaccurate data to remove voters from the rolls disregards Wisconsin’s local system of election administration. This is especially helpful, Kaul said, in small towns across the state where a municipal clerk might be uniquely positioned to know if someone had moved or not. 

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“There are clerks who may say, ‘I don’t know what the ERIC data says but I know that my neighbor in a small town lives at the address that the neighbor is registered at,’” Kaul said. “The idea that they would have to deactivate that voter because of a mass dataset from ERIC is fundamentally inconsistent with our notion of local control and administration of elections.” 

With 35 days remaining before the November election, it’s unlikely a ruling in this case would come before then and force voters off the rolls immediately before they went to cast their ballots. 

Voter registration in Wisconsin can be checked at Myvote.WI.gov. Eligible voters can register to vote online or by mail until Oct. 14 and in person at a local clerk’s office until Oct. 30. Voters can also register in person at the polling place on election day. 

To register to vote in Wisconsin an eligible resident needs a valid photo ID and documentation of their current address. (The ID is not required to have the current address, however.)

Henry Redman
Henry Redman is a staff reporter for the Wisconsin Examiner who focuses on covering Wisconsin's towns and rural areas. He previously covered crime and courts at the Daily Jefferson County Union. A lifelong Midwesterner, he was born in Cleveland, Ohio and graduated from Loyola University Chicago with a degree in journalism in May 2019.