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February 18, 2020

12/19/2019 7:30:00 AM
Our View
If only we could purge the state bureaucracy
Gregg Walker and Richard Moore
Publisher and Columnist

It's almost - almost - hard to remember all the abuses enacted against the people of Wisconsin more than a decade ago by the administrative state during the regime of Democratic Gov. Jim Doyle and his bureaucratic allies.

Those abuses were very real, and one can be forgiven if people choose to block out their memories of them. The years that Scott Walker served as governor were idyllic by comparison, a soothing salve that has helped us relax again.

Unfortunately, though the Legislature is still controlled by Republicans, the governor's office has flipped to a Democrat and Gov. Tony Evers served notice from day one of his administration that he intended to once again unleash the state's bureaucracy on the people.

On the bright side, thanks to the Walker administration and the Republican legislative majority, we now have new protective laws in place - such as the REINS Act - that restrict the power of administrative agencies. These protections make it harder for state bureaucracies to overturn election outcomes.

Harder but not impossible. State and federal bureaucrats still spend a good portion of their days trying to figure out ways to subvert the will of the people and push forward their own partisan political agendas. Federally, impeachment comes to mind; in Wisconsin, we have the state elections commission, to cite just the latest example.

Specifically, we point to this past week's brouhaha over purging as many as 234,000 voters from the state's voting lists. As we have reported, a circuit judge this past week sided with the Wisconsin Institute for Law and Liberty, which had sued the commission over voter purges - more precisely, over the lack of voter purges - on behalf of three Wisconsin voters.

In a nutshell, as WILL itself sums up the case, "Wisconsin participates with 28 other states in the Electronic Registration Information Center (ERIC). ERIC flags 'movers' - individuals who report an official government transaction from an address different than their voter registration address - to state election agencies."

Once these voters are flagged, state law requires the elections commission to send a notice to them, giving them 30 days to affirm that they still live at the registered address. If the voter takes no action for 30 days, WEC must change the voter's registration status from eligible to ineligible.

In October, the commission sent out some 234,000 notices. The thing is, back in June, the commission also adopted a policy that it would not purge any voter until at least after the April 2021 spring elections.

Now think about that. As many as 234,000 people who could be ineligible to vote would remain on the voter rolls, meaning they could easily cast ballots, and do so in the critical presidential election next year.

The thing is, the elections commission has absolutely no power or authority to set such a policy. For one thing, as WILL points out, the agency did not follow the state's rule-making process when it adopted the new policy, a process that requires both allowances for public comment and publication of the proposed rule.

Even if they followed the process, as WILL observed in its complaint, the commission had no power to adopt such a rule because the state statute is quite clear that a voter's status "shall" be changed to ineligible if that voter doesn't respond to the mailed notice after 30 days:

"If the elector no longer resides in the municipality or fails to apply for continuation of registration within 30 days of the date the notice is mailed, the clerk or board of election commissioners shall change the elector's registration from eligible to ineligible status."

The statute is clear and it doesn't give the elections commission any flexibility to change the 30-day window. But the agency not only changed that window, it changed to a time period of between 12 and 24 months.

In other words, the elections commission rewrote the plain language of the law, and WILL and the voters it represents were right to sue. There's not a clearer example of administrative state abuse. There's not a clearer example of the administrative state's attempt to subvert legislative intent.

Now, to make matters worse, the state Department of Justice, led by Democrat attorney general Josh Kaul, has appealed the circuit court decision to the state's appeals court. And it has appealed despite not getting authorization from the state elections commission to do so.

As WILL observes, the DOJ can appeal on its own but good government demands that the agency that is sued should authorize any appeal. After all, that agency is the DOJ's client in the case.

But the DOJ has egregiously appealed anyway. Here's how WILL puts it: "It would be an unfortunate situation if three of the WEC commissioners wanted to follow the law as directed by judge Malloy and the DOJ nevertheless proceeded with an appeal not authorized by WEC."

That's exactly what has happened.

To be sure, the attorney general is an elected official and so the abuse is not quite the same as bureaucratic abuse. But it's still abuse because the attorney general's obligation is to enforce the state's laws as written, not as he wishes them to be written.

Instead, the Democratic attorney general is aligning with a state bureaucracy to subvert a statute designed to curb and prevent voter fraud. Rather than uphold the actual statute, the DOJ is appealing on behalf of a bureaucracy to uphold a law that does not exist.

Of course, we know the reason why. Democrats want to pad voter rolls as much as they can heading into the 2020 elections. They want as many voters as possible to vote early and often.

From ACORN in the days of old to Josh Kaul's DOJ today, the path of the Democratic Party is littered with fake ballots. Luckily, they likely won't get away with these machinations, at least not in state courts where the final decision will probably be made in the conservative Supreme Court.

There's a federal case, too, by the League of Women Voters of Wisconsin, claiming that the mailed notices were inadequate because they did not properly inform voters how to maintain their registrations and did not warn them of the consequences of not responding.

It's a more plausible lawsuit, but it too will likely fail because nothing about the statute and the 30-day window to respond is onerous for voters. Most will simply mail back the form saying they haven't moved, and most who have moved will have re-registered as a matter of course.

Those few who haven't moved and who do get hung up by not answering the notice can simply re-register on Election Day at the polls, where voter ID is needed anyway.

There's simply nothing burdensome about a good law that helps to protect the integrity of the election system and ensure honest, clean elections. It would seem the only people who would oppose such a law are people who don't want honest, clean elections.

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