Two courts conflict over release of information about voters who were found incompetent

In a 2-1 opinion issued Wednesday, a Wisconsin appeals court ruled that a Walworth County official could be required to turn over to an outside organization records relating to voters identified as ineligible due to incompetence.

The decision, by judges in the Wisconsin Court of Appeals 2nd District, contradicts an opinion issued in early November by the court’s 4th District. That ruling upheld a lower court finding that the records are confidential and not subject to public disclosure.

In both cases the information was sought by activist Ron Heuer, who has promoted numerous 2020 election conspiracy claims, and his organization, Wisconsin Voters Alliance (WVA).

Heuer and the association have pursued cases in 13 counties to obtain the records. WVA has claimed there are discrepancies between the numbers of guardianship cases in counties and and the numbers of people who have been removed by the Wisconsin Elections Commission as ineligible to vote because they have been declared incompetent — suggesting that some people are voting despite having been found ineligible.

The group has sought information from all the  counties so far about every county resident for whom the elections commission has been sent a Notice of Voting Eligibility since 2016.

A Notice of Voting Eligibility reports when a court has found a person incompetent to vote or has restored a person’s right to register or vote. The elections commission adds the names of disqualified voters to a list it sends back to local elections officers.

Walworth County denied the WVA request, and a circuit court judge dismissed the association’s lawsuit to force the county to turn over the information. The judge ruled that the association lacked “clear legal right” to the information and that voting eligibility forms were confidential under the state law that declares records relating to incompetency proceedings to be closed.

In the 2nd District ruling, the author Judge Maria Lazar wrote that the confidentiality requirement is “expressly outweighed by the legislature’s mandate that voting ineligibility determinations are to be publicly communicated to the local officials or agencies” through the elections commission. She was joined in the opinion by Judge Shelley Grogan.

The ruling also holds that “the Notices of Voting Eligibility forms are already released” to local elections officials “with no restrictions or additional requirements of continued confidentiality.”

In addition, WVA “asserts it has an interest in seeing that the voter rolls in Wisconsin are accurate so that our elections comport with constitutional guarantees,” Lazar wrote. “If maintaining accurate voter lists — as statutorily required by the legislature — is not a sufficient need, we are hard-pressed to articulate another.”

In a dissent, Judge Lisa Neubauer castigated the opinion for ignoring the 4th District appeals court’s dismissal Nov. 9 of WVA’s suit seeking the same records from Juneau County. Under Wisconsin’s court system, Court of Appeals rulings apply to the state as a whole, not just their individual geographic districts. The result, Neubauer wrote, forces local courts either to comply with the 4th District opinion and ignore the 2nd District or vice versa.

Neubauer also observed that the 4th District ruling held that the voter eligibility forms “are confidential” and “categorically exempt from disclosure under the Public Records Law.” As such, the forms aren’t subject to the balancing test that the 2nd District majority applied in reaching their conclusion, she wrote.

In a footnote she argued that WVA “does not plausibly allege any inaccuracy in the voter rolls” and “does not allege that any person in Walworth County who is ineligible to vote as the result of being placed under a guardianship has voted illegally or even been sent a ballot.” She added: “Every finding of incompetency is not an automatic loss of voting rights.”