Wisconsin appeals court rules voters targeted for purge will remain on the rolls

Patrick Marley
Milwaukee Journal Sentinel

MADISON - A Wisconsin appeals court Friday struck down an Ozaukee County judge's ruling that thousands of people had to be quickly removed from the state's voter rolls because they are believed to have moved.

The appeals judges also unanimously overturned a finding that state election officials were in contempt of court for not taking people off the rolls. 

The ruling comes a month after the District 4 Court of Appeals in Madison temporarily blocked the decisions by Circuit Judge Paul Malloy. Friday's ruling puts a more permanent block on the effort to take voters off the rolls, but those who brought the lawsuit promised to ask the Supreme Court to reverse the latest ruling. 

The appeals decision affects more than 200,000 voters who were targeted to be taken off the rolls in one of the most closely watched states for this year's presidential election. State officials believe the voters have moved, and supporters of the lawsuit argued they must be taken off the rolls until they re-register to vote. 

Friday's ruling was issued by Judges Michael Fitzpatrick, JoAnne Kloppenburg and Jennifer Nashold. No dissents were noted. 

The Wisconsin Elections Commission in October notified about 232,000 people it believed may have moved and asked them to update their voter registrations or confirm they were at the same address. It planned to remove them from the rolls in 2021 if they didn't act. 

Three voters represented by the conservative Wisconsin Institute for Law & Liberty sued, arguing the state had to remove them from the rolls much faster. Malloy agreed and ordered the voters purged from the rolls.  

The commission left those voters on the rolls after twice deadlocking on the issue. That prompted Malloy in January to find the three Democrats on the commission  — Ann Jacobs, Julie Glancey and Mark Thomsen — in contempt of court. He did not find the Republicans in contempt because they had sought to take people off the rolls.

Malloy fined the commission $50 a day and the Democratic commissioners $250 a day each. No fines were ever paid because the appeals court temporarily blocked the contempt findings the next day. 

The lawsuit hinged on a state law that says voters should come off the rolls if they have not responded within 30 days to notifications that there is reliable information that they have moved. But the appeals court concluded that law applies to local clerks and not the state commission. 

"The plain language of (the law in question) neither refers to the commission nor places any duties on the commission," the judges wrote in their 45-page opinion

The judges noted state law refers to the Wisconsin Elections Commission as "the commission" more than 100 times. Those behind the lawsuit contend a mention of the "board of election commissioners" also refers to the state commission, but the judges concluded that was a clear reference to local commissions like the Milwaukee Election Commission.

"In interpreting the Wisconsin Statutes, courts may not rewrite the plain language of the statutes the Legislature has enacted," the judges wrote. "Acceptance of the arguments of plaintiffs would cause us to rewrite statutes enacted by the Legislature, and that we cannot do."

Rick Esenberg, the president of the Wisconsin Institute for Law & Liberty, said he would ask the Supreme Court to overrule the appeals court. 

"Wisconsin deserves clean elections in 2020," he said in a statement. "It is our intent to seek review in the Wisconsin Supreme Court to ensure that the Wisconsin Elections Commission complies with state law."

Attorney General Josh Kaul, a Democrat who defended the Elections Commission, praised the appeals court's ruling and said he believed the commission was in a strong position if the case goes to the Supreme Court.

“I think that this decision is a win not only for the voters who were close to being purged, but also for democracy," he said. 

Esenberg tried to get the Supreme Court to take the case before the appeals court ruled on it, but the justices declined to do so after they split 3-3 in January. The tie vote occurred after conservative Justice Daniel Kelly declined to participate in the case because he is on the ballot this spring and did not want to create the appearance of a conflict of interest. 

Conservative Justice Brian Hagedorn sided with the court's two liberals, Justice Ann Walsh Bradley and Rebecca Dallet, in saying the high court shouldn't take the case. The court's other conservatives, Chief Justice Patience Roggensack and Justices Rebecca Bradley and Annette Ziegler, contended the Supreme Court should have taken the case. 

Now that the appeals court has issued its final ruling, those bringing the lawsuit will try again to get the Supreme Court to take the case. Whether the votes of any justices will change remains uncertain.

If voters are ultimately removed from the rolls, they can re-register to vote online at myvote.wi.gov, at their clerk's offices or at the polls on election day. Voters can also use that state website to check their registration status and find out if they have been flagged as possibly moving. 

Meagan Wolfe, director of the Elections Commission, in a statement said she appreciated the appeals court's ruling and urged people who have moved to update their registrations.   

“The important thing for voters to know is that if you have moved, you need to be registered at your current address before you can vote," she said in her statement. 

“No voters have been deactivated if they did not respond to the Wisconsin Elections Commission’s mailing in October 2019 to voters who may have moved. The mailing was to make sure that voters who have moved know how to re-register at their current address and to encourage them to do that before the election or on election day.”

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.