On Monday, the Wisconsin Supreme Court granted review of a lawsuit brought by the conservative Wisconsin Institute for Law & Liberty (WILL) against the Wisconsin Elections Commission for not purging the voting rolls of more than 200,000 Wisconsin voters who might have moved.
“We are pleased the Wisconsin Supreme Court has agreed to hear this critical case,” WILL President and General Counsel Rick Esenberg said in a statement. “Recent months have made clear that state agencies, like the Wisconsin Elections Commission, must be held accountable when they ignore state law.”
In February, Wisconsin’s 4th District Court of Appeals overturned a lower court’s order to remove more than 200,000 voters who might have changed address from the rolls, and vacated a contempt order against the Wisconsin Elections Commission, as well as individual commissioners, for not doing so promptly.
WILL appealed the case to the Wisconsin Supreme Court.
The state Supreme Court had previously declined WILL’s request that it intercede in the case, instead sending it back down to the court of appeals. Justice Daniel Kelly, who was widely seen as a potential beneficiary of the voter purge in his April 7 election campaign, recused himself from that decision. Without his vote, the court split 3-to-3, and the case was sent back to lower court.
The court of appeals, deciding in the Elections Commission’s favor, reversed a court order by Ozaukee County Judge Paul Malloy that declared the voter registrations invalid and slapped a fine of $50-a-day on the commission and $250 a day on the three Democratic commissioners who voted against the removals, until they complied.
“Today, the Supreme Court agreed to review the court of appeals’ decision preventing the proposed purge of hundreds of thousands of registered Wisconsin voters from the rolls,” said 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. “The court of appeals decision is a thorough, careful and honest reading of the statutory text.”
“While it takes only three justices to agree to give a case a full hearing,” Mandell added, “it takes at least four to reverse the court of appeals. If the Supreme Court pays attention to the statutory text, rather than the political subtext, the court of appeals decision will be affirmed.”
The case, Zignego v. Wisconsin Elections Commission, was filed on behalf of three Wisconsin voters who say their rights were violated when the commission declined to nullify the voter registrations of people whose driver’s license records and other documents showed different addresses from voter registration files. The Elections Commission receives information on movers through the multi-state Electronic Information Registration Center (ERIC). Because in previous years some voters were wrongly purged, the commission had decided not to automatically purge people flagged by ERIC.
“The Commission is confident that it is complying with Wisconsin law,” commission administrator Meagan Wolfe said in a statement responding to an earlier complaint by WILL. “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.
The lawsuit was criticized as an effort at voter suppression intended to help Republican candidates. A review by the Center for Media and Democracy showed that, after Wisconsin joined ERIC in 2016, “significantly more voters were purged from the rolls in Democratic-leaning counties than Republican-leaning counties.”
Because of the high number of wrongful voter purges and the possibility of confusion and errors on Election Day, 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 an earlier WILL complaint.
The Supreme Court order on Monday stated that plaintiffs, respondents and petitioners in the lawsuit must file briefs within 30 days and the Wisconsin Elections Commission must file a brief within 20 days after that.
Lawyers in the case said they expected that the Court would hear it before the November presidential election, but based on the briefing schedule set out in today’s order, arguments would probably not be heard until September or October, making it unlikely that a decision could be issued and implemented by November 3.