Arguing that the state elections commission has refused to comply with a court order requiring the commission to purge outdated voter registrations from state voter rolls, the conservative Wisconsin Institute for Law & Liberty (WILL) filed a motion last week to hold the commission in contempt of court.
WILL filed the motion on behalf of three Wisconsin voters who have sued the elections commission over the issue.
In its contempt motion, WILL says the commission has refused more than once to comply with a Dec. 17 order by circuit judge Paul Malloy to purge the list.
"Court orders are not optional," WILL president and general counsel Rick Esenberg said in filing the motion. "It is astonishing to observe the Wisconsin Elections Commission act as if they are. Despite the wishes of some, judge Malloy's order has not been stayed and must be enforced."
According to WILL, the group filed its lawsuit in Ozaukee County circuit court on Nov. 13 after the state agency intentionally ignored state law to allow voter registrations at old addresses to remain active.
That put the state's election integrity at risk, WILL asserts.
At a December hearing, Malloy ordered the elections commission to immediately comply with state law by cleaning up the voter rolls and removing registrations from outdated addresses. But twice now - the latest vote came Dec. 30 - the commission has deadlocked along party lines, with the commission's three Republicans seeking to comply with the order and three Democratic commissioners refusing.
The deadlock means no action was taken to remove the voters from the lists.
But Wisconsin law has established procedures to ensure and maintain accurate voter rolls, WILL asserts.
"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."
The Wisconsin Elections Commission first reviews the information on "movers" for accuracy and reliability. Then, WILL argues, state law provides specific direction on how to handle "movers" flagged by ERIC.
First, according to WILL, the WEC is to send a notice to the mover at the address of their voter registration. Second, 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, WILL states. If the voter takes no action for 30 days, WEC is to change the voter's registration status from eligible to ineligible.
However, last summer, the elections commission decided that changes in eligibility for a voter flagged as a "mover" would not occur for 12 to 24 months. That's contrary to state law, WILL asserts.
After the latest 3-3 deadlock, the commission said it was awaiting further direction form the courts.
"At a special meeting today, the Wisconsin Elections Commission did not pass any motion directing staff to take action on the movers mailing list," the commission said in a statement after the meeting. "This means the commission will await further direction from the Court of Appeals and the Supreme Court of Wisconsin. When those courts provide direction, the Commission will hold another meeting to discuss action to comply with the ruling."
For now, the Republicans on the commission have asked the state Supreme Court to take the case directly, and, as of this writing, it has made no decision. But this week the court of appeal said it would take no action until the Supreme Court makes a ruling. That means Malloy's order remains in place for now.
But, WILL contends, a circuit court has already provided direction through an order to remove the names, and that order has not been overturned or stayed. Until one or the other of those things happens, WILL argues, that order is the law of the land.
"Apparently, WEC does not believe that the circuit court's mandamus order is 'the law,'" WILL states, quoting Mark Thomsen, a Democratic appointee to the WEC, as saying, "the law isn't the law until the court of appeals says what it is ....'"
This past week, state Sen. Duey Stroebel (R-Saukville) said the refusal to obey the court order by Democratic members of the elections commission should be troubling for anyone concerned with elections in the state.
"The judicial order was clear, the Wisconsin Elections Commission must maintain voter lists as per state law," Stroebel said. "This law is clear and the judicial order leaves no room for the Democratic members of the election commission to find excuses. My constituents expect fair and transparent elections and disregarding state law and a judicial order undermine those expectations."
Wisconsin continues to have same day voter registration, Stroebel pointed out.
"This means that any citizen who is eligible to vote can register to vote almost any day between now until Election Day, whether they have moved or are voting for the first time," he said.
State and regional impacts
According to the elections commission's website, the agency sent "movers" letters to approximately 234,039 names. However, the latest agency spreadsheet has reduced the number to 232,579 names because 1,460 on the original list reregistered at new addresses.
Of the 232,579 people who received the letters, 60,676 were returned by the post office as undeliverable. The agency received no response requesting continuation of the current voter registration for another 169,491 mailings, while 2,412 had responded and requested continued voter registration.
So far, the agency says, 20,743 people on the movers mailing list have reregistered to vote.
In Oneida County, 1,371 registered voters were sent letters. Of those, there has been no response from 988 voters, while 42 requested continuation of their registration and 341 were undeliverable.
In Vilas County, 615 registered voters were sent letters. Of those, there has been no response from 597 voters, while three requested continuation of their registration and 15 were undeliverable.
In addition to the lawsuit in state court, there is one in federal court brought in December by the liberal League of Women Voters. The lawsuit, filed on behalf of two registered voters, alleges the purge would violate the due process clause of the 14th Amendment because, the LWV stated, the letters sent by the Wisconsin Elections Commission did not provide adequate notice of what voters needed to do to remain on the rolls, the consequences if they did not respond to the letter, and the timeline for them to act.
The LWV also claims the purge violates the due process clause because the Wisconsin Elections Commission told voters who did not move and had received the letter in error that they could confirm their voter registration addresses by voting in the next election.
That, the League asserts, led voters to believe they could use and rely on that method to stay on the rolls and vote.
"If the purge instead occurs immediately, it would be an about-face from what voters were told in October 2019 because these voters will have their registrations cancelled before they have the chance to confirm them," the LWV states. "The 14th Amendment prohibits this kind of last-minute rule change without providing voters notice and the opportunity to confirm their registration."
This past week, attorneys for the state Legislature filed a motion in that case for the federal court to put the case on hold until the case in state courts is resolved.
Richard Moore is the author of the forthcoming "Storyfinding: From the Journey to the Story" and can be reached at richardmoorebooks.com.
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