Conservative Group asks Judge to hold Election Officials in Contempt

The conservative legal group, Wisconsin Institute for Law and Liberty (WILL) today asked an Ozaukee County judge to hold the Wisconsin Elections Commission in contempt and charge them up to $12,000 per day in a lawsuit concerning Wisconsin's voter rolls. At issue is a ruling in December requiring the removal of over 200,000 voters from the state election rolls. WILL President and General Counsel Rick Esenberg said in a public statement, “Court orders are not optional. 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.”

Ozaukee County Judge Paul Malloy ruled in favor of WILL's lawsuit last month, requiring the Elections Commission to immediately withdraw voters from the state voter rolls who were suspected to have moved from their current registered address. 

The Elections Commission mailed notices to more than 230,000 voters in mid-October who were suspected of having out-of-date voter registration addresses. This list was obtained from the national Electronic Registration Information Center (ERIC) database. Voters were instructed to respond to the notice if they received it. 209,000 of these registered voters did not respond and were put into a list to be removed from the voter rolls.

The Elections Commission did not intend to remove these voters from the rolls until 2021 in an attempt to not cause confusion in the 2020 election cycle. They were particularly reluctant because the previous attempt at purging the voter rolls in 2017 resulted in the erroneous removal of many voters. The commission did not consider the ERIC information reliable enough to do the removal this year, though the law requires removal within 30 days of obtaining reliable information on voter moves. The December ruling by Judge Malloy required removal of the voters but did not set a firm time-line, and the law is not clear if the requirement applies to the state or to the individual election clerks throughout the state. 

The commission has not removed the voters since the court order because there was no deadline stipulated, and because there is current litigation that is pending. The commission has voted twice on whether to do the removal of voters, and both times the commission was deadlocked on a 3-3 party-line vote, with the Republican members voting to remove the voters from the rolls immediately, and with the Democratic members voting to not do the removal until the pending litigation produces a clearer mandate from the courts. 

Josh Kaul, Wisconsin Attorney General has appealed the court decision on behalf of the Wisconsin Elections Commission. WILL is asking to have that appeal heard directly by the state Supreme Court, which has not issued an opinion on whether they will hear the case.  “Both DOJ and WILL have already sought further review, and those motions are still pending,” Kaul said in a statement Thursday. “This case should not effectively be ended before the appeals process plays out.” 

Simultaneously a separate suit has been filed by the League of Women Voters of Wisconsin, who prevented from participating in the original lawsuit by Judge Malloy. The League claims that the removal of the voters from the rolls violates the voters' rights to due process. 

Arguments over this case have become highly partisan. Republicans in the state see this as another example of their fight against potential voter fraud, despite the lack of evidence that any substantial amount of voter fraud takes place, and believe that the Elections Commission is refusing to follow the law. Democrats are disturbed that the number of potentially disenfranchised voters falls heavily in urban and swing areas of the state. The potential outcome of the removal is not clear since the reliability of the data used to generate the lists is in question - it is likely that most of the people being removed have actually moved, but previous attempts at using this data have caused some confusion at the polls when people who have not moved come to vote and find they have been removed from the voter lists. The effect of this is ameliorated because Wisconsin allows same-day voter registration, and a voter can re-register at the polls if they have sufficient documentation to do so with them. 

The timing of this lawsuit is crucial because there are multiple elections in the upcoming months, starting with local primaries in February, a State Supreme Court election in April, and of course the national presidential election in November.