Despite an order from an Ozaukee County circuit judge last Friday to deactivate the registrations of up to 234,000 residents because they may have moved, the Wisconsin Elections Commission took no action this week to do so, opting instead to wait for the outcome of an appeal filed Tuesday by the state Department of Justice.
The judge's decision came on a lawsuit filed by the Wisconsin Institute for Law & Liberty (WILL), which had filed a complaint in November on behalf of three Wisconsin voters, alleging that the elections commission had ignored state law by adopting policies that allow voters who have moved to maintain active voter registrations at old addresses beyond 30 days.
The commission had sent letters in October urging those who had moved to update their registrations or, if they had not moved, to alert election officials to that fact.
All totaled, officials say the letters were sent to approximately 7 percent of But the elections commission itself did not see it exactly that way. In a meeting this past Monday, the commission deadlocked on a 3-3 vote to require the commission to deactivate the names seven days after Malloy issues a written ruling. That tie meant the motion failed, so no action was taken.
The commission also did not authorize an appeal of the decision, but the state Department of Justice appealed anyway on Tuesday.
The commission is composed of three Democrats and three Republicans.
The Republican members voted for the motion, while the Democrats voted to wait for an appeal.
WILL had urged the DOJ not to file an appeal without the commission's authorization.
"Unless and until WEC (the client) authorizes an appeal, the Wisconsin Department of Justice (as attorneys) should not rush forward with an appeal," WILL stated. "If DOJ proceeds with an appeal without obtaining the consent of a majority of the WEC commissioners, the public should know that fact. 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."
In its complaint, WILL contends that the elections commission ignored state law on how to handle "movers."
"Wisconsin participates with 28 other states in the Electronic Registration Information Center (ERIC)," WILL states. "ERIC flags 'movers' - individuals who report an official government transaction from an address different than their voter registration address - to state election agencies."
State law provides specific direction to WEC on how to handle those movers, WILL asserts. First, after people are flagged as potential movers, the law requires the state to notify those voters by mail to the registered address and to give the source of the information that suggests the voter has moved.
If the voter no longer resides at the registered address, or fails to apply for a continuation of registration within 30 days of the mailed notice, the clerk or board of election commissioners shall change the elector's registration from eligible to ineligible status, according to the statute.
"In summary, when WEC receives reliable information that voters have moved, they are to send a notice to the mover at the address of their voter registration; a voter has 30 days to affirm whether they still live at the address; if the voter affirms they live at the address - by returning the postcard or completing a brief form online - nothing happens; if the voter takes no action for 30 days, WEC is to change the voter's registration status from eligible to ineligible," WILL states.
However, WILL contended in its complaint, in June the elections commission adopted a policy that changes in eligibility for a voter flagged as a mover would not occur for 12 to 24 months.
That policy directly violates state law, WILL stated.
In addition, WILL continued, not only does the policy contradict state law, the agency did not follow rule-making procedure when it adopted its more lenient policy.
"When state agencies adopt new policies, they are required to follow the rule-making process laid out in state law (sometimes referred to as Chapter 227)," WILL states. "The rule-making process requires a state agency to publish a proposed rule, allow for public comment, and a formal adoption of the rule after a set period of time."
When WEC adopted the new policy on movers in June, WILL contends, they followed none of these procedures.
Political hot potato
As one might imagine, with the 2020 presidential election looming and with Wisconsin considered a close and critical battleground state, the lawsuit and the judge's ruling are considered hot to the political touch, with Democrats calling the ruling an explicit attempt at voter suppression.
For its part, WILL said the judge's decision will not disenfranchise voters.
"For the vast majority of the more than 200,000 voter registrations impacted by this decision, we have reason to believe that the ERIC data on movers is reliable (to the tune of 90-95 percent accuracy)," WILL states. "That means those voter registrations are, in fact, located at old addresses and should come off the rolls."
But, WILL continued, for those who may find themselves on the ERIC list by mistake, WEC sends a postcard notifying them that they must take steps to confirm their voting address.
"If they fail to take those steps, Wisconsin has same-day voter registration and two full weeks of in-person absentee voting, meaning voters have ample opportunity to re-register and cast a ballot," WILL states.
The bottom line is, WILL argues, the lawsuit is not at all about partisan politics.
"Much has been made in the press about the potential 'impact"' of WILL's lawsuit and judge Malloy's decision," WILL states. "Because the ERIC list includes more voters in traditionally Democratic voting areas, this lawsuit has been cast as a partisan attempt at voter suppression."
But that's wrong for two reasons, WILL states.
"First, the success of our lawsuit depends on making the case that the Wisconsin Elections Commission violated state law," the group states. "We make that case based on the law and the law only."
And, second, WILL contends, those who claim to know the impact of the decision are mistaken.
"The only thing we know is that ERIC identified more than 200,000 voter registrations of individuals who may have moved," the group states. "Those who claim to know the political views of those voters are not being honest. Further, for the decision to have any 'impact' other than cleaning up the voter rolls, one would have to know, with certainty, that those whose registrations have been deactivated cannot, for some reason, re-register and cast a ballot from a current or future address."
Nonetheless, Democrats and their liberal allies were outraged, with Gov. Tony Evers taking to Twitter to show his displeasure.
"I won the race for governor by less than 30,000 votes," Evers tweeted. "This move pushed by Republicans to remove 200,000 Wisconsinites from the voter rolls is just another attempt at overriding the will of the people and stifling the democratic process."
Evers followed by tweeting that the GOP should get over the 2018 election results.
"Voting is a fundamental right, and we should be making it easier for folks to vote, not harder," he tweeted. "It's time for Republicans to move on from the election we had more than a year ago and start working on the pressing issues facing our state."
Meanwhile, the liberal League of Women Voters said it would continue efforts to overturn the judge's decision, and this week it filed its own lawsuit in federal court. The LWV had sought to intervene in the lawsuit as an intervening defendant prior to the decision but was denied by the judge.
"The League is very disappointed to not have been permitted to join in this case, and we respectfully disagree with the court's decisions," Erin Grunze, executive director of the League of Women Voters of Wisconsin, said after the decision. "Our intention to join the case was to ensure that voters are not removed from the list because of inaccurate and unreliable data, and that unfortunately is what was ordered today. We know Wisconsin can do better by its voters and that all eligible voters should not have to worry about being erroneously removed and having to re-register when they go to vote."
Jon Sherman, a senior counsel at Fair Elections Center, a national voting rights and election reform organization that represents the LWV, said his group was working on other options to halt the voter purge.
"In rejecting the League's intervention, the court did not hear arguments that would have avoided further legal violations," Sherman said. "As a result, the court's order today does not require the state to issue new notices to voters, even though the October notices failed to warn of deactivation."
Sherman asserts that the judge's order does not even comply with the very Wisconsin law at issue.
According to Sherman, the statute provides that upon receipt of reliable information that a registered elector has changed his or her residence within the municipality, the municipal clerk or board of election commissioners shall change the elector's registration and mail the elector a notice of the change.
What's more, the data used to flag voters that may have moved is not necessarily reliable, the LWV argues.
"However, due to many factors with how the state gathers voter information, particularly from Wisconsin DMV records, some voter roll maintenance is based on flawed, unreliable information, meaning many voters could find their registration revoked even if they have not moved to a new municipality or out of state, or already updated their registration to their new address," the LWV states.
When Wisconsin used this badly flawed data to purge voter rolls in the 2017-2018 election cycle, three cities, including Milwaukee, reversed the purge entirely because so many errors were present in the data, the LWV stated.
"New letters were sent to 234,039 registered voters in October 2019, which accounts for 7 percent of Wisconsin's 3.3 million registered voters," the league stated.
Over at the Wisconsin Democracy Campaign, executive director Matthew Rothschild wrote that the elections commission did the right thing by waiting to deactivate the 234,000 registrations.
"It's crucial that the appellate court get to hear the appeal, either by the Elections Commission or by the League of Women Voters, whom judge Malloy, without good reason, would not allow into the case," Rothschild wrote on the WDC website.
Rothschild said there were several reasons Malloy's ruling was wrong.
"First, this particular provision of the law was a blatant attempt to make it harder for people to vote, most notably certain Democratic voters," Rothschild wrote. "Judge Malloy's order seemingly corroborates this since, according to the Milwaukee Journal Sentinel, the majority of individuals on the list were registered in college towns and Milwaukee and Madison, all of which tend to be Democratic strongholds. Students, poor people, and people of color congregate in these Democratic-leaning places."
Second, Rothschild wrote, the partisan nature of the assault on Wisconsin voters is obvious not just because it came from the Wisconsin Institute for Law & Liberty but also because two of the three plaintiffs are major donors to Wisconsin Republicans.
"Finally, the rationale for this lawsuit is based on a trumped up fear of legions of ghost voters waiting in the wings to illegally steal an election by voting in districts they are not registered to vote in, or voting more than once," he wrote. "This fear has been debunked by a myriad of studies that have found almost zero evidence of voter fraud in Wisconsin and nationwide."
Rothschild said the effort to purge voters in Wisconsin is not an isolated one.
"Rather, it comes straight out of the playbook of conservative groups that are fighting on many fronts to suppress the vote, here in Wisconsin and across the country," he wrote. "Making it harder for people to vote in a democracy is a disgrace."
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