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February 23, 2020

1/16/2020 7:30:00 AM
Supreme Court refuses to take voter purge case
Hagedorn defection hands Democrats a big win; Bradley dissents

Richard Moore
Investigative Reporter

In a week of fast-moving developments, the state Supreme Court declined to bypass the state appeals court and take up the contested potential removal of more than 200,000 people from the state's voter rolls, giving Democrats at least a temporary victory in their bid to keep those voters on the books for the 2020 presidential contest.

The conservative Wisconsin Institute for Law & Liberty had asked the high court to take up the case directly, but the justices deadlocked 3-3. Three conservatives voted to take up the case, but conservative justice Brian Hagedorn joined the court's two liberals for a tie vote, meaning the court will not act.

Another conservative justice, Dan Kelly, recused himself from the vote because he is on the spring election ballot and said he did not want to create even the appearance of a conflict of interest.

The Supreme Court ruling came after Ozaukee circuit judge Paul Malloy had held the elections commission and in particular the Democratic members of that commission in contempt of court for not following his December order to purge the voters immediately. He subjected the Democratic members to fines of $250 a day each until the order was followed.

However, shortly after the Supreme Court refused to take the case, the appeals court stepped in and stayed Malloy's purge order pending that court's hearing of the case, and appeals court judge Mike Fitzpatrick further suspended the contempt order.

Meanwhile, the state elections commission met again Tuesday and again deadlocked 3-3 on what to do, meaning the commission will do nothing.

That means for now, the voters on the purge list are safely ensconced on the registration rolls at least until the appeals court decides the case, and almost certainly until the Supreme Court ultimately decides the issue on appeal - very likely after the November presidential election.

The voters in question are on a so-called movers list - having been flagged as potentially no longer living at their registered address - who have not responded to an elections commission letter asking them to affirm that they still live at the registered address.

By statute, voters have 30 days to respond or be deemed ineligible at the current address; the voters on the list have not responded.

Bradley in withering dissent

Though the three Supreme Court justices who did not support bypassing the court of appeals offered no explanation for their position, conservative justice Rebecca Bradley authored a searing dissent accusing the court of evading its responsibility to the voters.

Bradley was joined in the dissent by two other court conservatives, chief justice Patience Roggensack and Annette Ziegler.

"In declining to hear a case presenting issues of first impression immediately impacting the voting rights of Wisconsin citizens and the integrity of impending elections, the court shirks its institutional responsibilities to the people who elected us to make important decisions, thereby signaling the issues are not worthy of our prompt attention," Bradley wrote. "When a matter is brought to the Supreme Court for review, the court's principal criterion in granting or denying review is not whether the matter was correctly decided or justice done in the lower court, but whether the matter is one that should trigger the institutional responsibilities of the Supreme Court."

With no less than five upcoming elections in Wisconsin, including the presidential election in November, Bradley wrote that there was an obvious need to hasten the ultimate appellate decision in the case to afford voters, election officials, candidates, and poll workers clear and final direction regarding who may vote.

"Instead, this court 'chooses to sit idly by,' allowing the case to proceed before the court of appeals and depriving the people of Wisconsin of a final answer to novel questions of statutory law on which only the state's highest court may have the final say," she wrote, citing other case law. "The court's 'refusal to hear this case shows insufficient respect to the state of [Wisconsin], its voters' and its elections."

Bradley said the high court only deferred the decision because it will return no matter what after the appeals court decision, but the delay meant no decision would be made before the critical presidential election.

"By deferring its inevitable decision in a case unlikely to return to us in time for this court to render a decision that could be implemented prior to the November presidential election (much less any earlier election), regardless of what the court of appeals decides, this court denies justice to the people of Wisconsin who deserve a prompt resolution of a dispute that affects important statewide and national elections this year," she wrote. "The case is well worthy of our attention."

Indeed, Bradley wrote, the case presents issues that trigger the institutional responsibilities of the court and satisfy multiple criteria for granting review.

"By denying the bypass petition, this court leaves voter rights and election integrity in flux, with no final resolution of the uncertainty in the law likely until after four statewide elections and one special congressional election," she wrote. "Each person's right to vote should be protected, but by its inaction, this court jeopardizes consistency in the exercise of that right."

A lack of law

For one thing, Bradley continued, both parties acknowledge there is no case law interpreting [the movers' statute at issue], the meaning of which she said presents a novel question of law and involves the potential deactivation of more than 200,000 voter registrations.

More generally, she contended, the statute's interpretation is crucial to the manner in which election officials maintain voter registration lists.

"These constitute important and purely legal issues, which the state's highest court bears a responsibility to resolve," she wrote.

Only a final decision of the Supreme Court can provide the necessary clarity to guide all election officials in the state on how to conform their procedures to the law in the upcoming elections, Bradley asserted.

"Having the matter initially reviewed by the court of appeals will only delay a definitive declaration of what the law says, depriving election officials of the requisite knowledge to carry out elections in accordance with the law," she wrote.

One of the major criteria to be considered in deciding Supreme Court reviews is that "the question presented is a novel one, the resolution of which will have statewide impact," Bradley wrote, citing state statute, and she said the question at hand fits that bill.

"This appeal primarily involves the interpretation of Wis. Stat. § 6.50(3), which presents novel questions of law because no cases interpreting the statute exist," she wrote. "These unsettled questions of law are of enormous consequence to the people of Wisconsin and demand careful and timely resolution from this court. As framed by the parties, these issues are of special importance because they involve the democratic process in Wisconsin, the integrity of state voter rolls, and the registration of hundreds of thousands of voters."

What's more, she wrote, the court of appeals hears thousands of cases a year, with disposition times approximating a year or more.

"The workload of the state's intermediate appellate court will unnecessarily delay, in this time-sensitive case, a final pronouncement of what the law is - leaving election officials across the state in limbo and without clear guidance on how to follow it," she wrote. "The element of urgency in this case is paramount and warrants eliminating the time the appeal would spend in the court of appeals in favor of receiving an expeditious final decision from this court."

Bradley said it was difficult to reconcile the court's decision on the bypass petition with its lengthy and consistent history of hearing cases involving voting rights and election processes in the first instance - either as part of the court's original jurisdiction or by bypassing the court of appeals.

Finally, Bradley observed that there is a federal case in the matter, a lawsuit filed by the Wisconsin League of Women Voters challenging any voter purge, and she contended that the court's decision would impact that proceeding.

"Rejecting the bypass petition also signals to the federal court presiding over the related League of Women Voters case that the Wisconsin Supreme Court does not deem this matter important enough to assert its prerogative to resolve a controversy squarely within our jurisdiction on issues of state law," she wrote. "Historically, when a state law matter is pending before this court, federal courts stand down from interceding in order to allow the state's highest court to resolve it."

Leaving the case with the court of appeals could result in the related federal court litigation proceeding in tandem, with the issuance of potentially conflicting orders sowing confusion in the conduct of Wisconsin's elections, Bradley argued.

The bottom line is, the justice concluded, the high court refused to do its job and thus harmed the rights of Wisconsin citizens.

"The court's decision to take a pass on this case irreparably denies the citizens of Wisconsin a timely resolution of issues that impact voter rights and the integrity of our elections," she concluded. "The court disregards its duty to decide significant issues of statewide importance."

Richard Moore is the author of the forthcoming "Storyfinding: From the Journey to the Story" and can be reached at

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