Wisconsin Supreme Court Justice Daniel Kelly said Wednesday he would "rethink" his decision to not participate in a high-profile case over Wisconsin's voter rolls after April 7, when he faces re-election to the court next month.
In the meantime, Kelly said he would continue to recuse himself from involvement in the case that could result in the removal of thousands of registered voters from the state's rolls.
Kelly's comments came shortly after the Wisconsin Institute for Law & Liberty again asked the court to take up the issue, though the conservative firm acknowledged in its filing that "there is simply not enough time" to act on it before voters go to the polls on April 7.
Kelly, who is facing election to a full 10-year term on the court next month, opted to sit on the sidelines over the issue in December when WILL previously asked the justices to take the case, though the panel split 3-3 over whether to do so.
That recusal decision is based on Kelly's appearance on statewide ballots during the spring general election, circumstances he said make it "inappropriate for me to sit on a case."
But after voters decide who to elect in the race — Kelly or his liberal opponent Judge Jill Karofsky — he said Wednesday if "the reason for recusal is no longer there," he'd "just have to reconsider at that point."
Still, Kelly cautioned he'd also have to review the case materials after the election, as he hasn't seen any briefs that are filed and has attempted to avoid news reports about the case following his initial decision to recuse himself.
"Consistent with my oath and obligation to sit on every case that I can, I’d certainly consider it," he said. "But we’d have to look at what’s come to court and how that would impact the case and the posture as it comes to us."
Karofsky campaign spokesman Sam Roecker slammed the comments in a statement, writing in a text message that Kelly "jumps at any opportunity to side with the right-wing special interests backing his campaign, so of course he's going back on his word."
"Voters are sick of this and ready for a fair and independent justice on the court," he continued.
WILL's petition Wednesday follows an appeals court's decision late last month overturning an Ozaukee County judge's ruling to purge the voters from the rolls. The latest decision sent the case back to the lower court, where the appeals court said it should then be dismissed.
The move came after the appeals court in January put the purge on hold as it considered the case.
The Supreme Court, which currently has a 5-2 conservative majority, would retain that makeup until August when the 10-year term for Kelly's seat starts, regardless of the outcome of next month's election.
If Kelly loses election, he said he wouldn't have qualms about participating in cases, particularly highly scrutinized or politicized ones such as the voter purge case, for the remainder of his time on the court.
"I wouldn’t see any reason to not honor the oath that I took to sit on all the cases that came before us," he said. "So hopefully I won’t have to face that question."
At issue in the case are so-called "movers," or voters who were flagged by the state Elections Commission as having potentially moved based on information it received from the Department of Motor Vehicles, the post office or other government agencies. The information led the body to send letters to the individuals asking them to verify their addresses to remain registered and cast ballots.
The commission sought to allow voters to stay on the active list until after the April 2021 election. At that time, those who hadn’t voted or re-registered would be deactivated. But WILL has argued the approach is illegal and that the commission is mandated to remove voters from the rolls if it doesn’t receive a response to its mailings after 30 days.
The legal action has drawn national attention as Wisconsin remains positioned as a key battleground state heading into the November general election. In 2016, President Donald Trump won the state by less than 23,000 votes over Democrat Hillary Clinton.
If voters are ultimately removed from the rolls, individuals can re-register in-person on Election Day, by mail or online at myvote.wi.gov, a site where voters can also check if they're already registered.
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