A conservative legal group on Wednesday petitioned the Wisconsin Supreme Court to overturn an appeals court ruling that halted a lower court’s decision that would have ordered more than 200,000 voters to be purged from the rolls because they may have moved.
The filing from the Wisconsin Institute for Law and Liberty could extend the legal battle over Wisconsin’s voter rolls that commenced last fall and has generated significant interest and outcry across the nation. It’s not clear whether the 5-2 conservative-dominated high court will take up the case.
The Supreme Court already declined to take up a request from WILL to immediately consider a stay in the case, bypassing a lower court.
The court’s decision could have significant implications for the state’s August or November elections if the registrations of thousands of voters are deactivated, requiring them in some cases to register again. Such a move could dampen turnout because registering again requires a voter to provide proof of residence. Wisconsin allows voters to register on Election Day.
As of late December, only 2,412 voters of the 232,579 who received a mailing indicating they moved and needed to re-register have requested to continue their registration at their current address, meaning the mailing was wrong.
Conservatives argue invalidating the registrations of voters who may have moved is important to keep the voter rolls accurate.
In February, Wisconsin’s District IV Court of Appeals, based in Madison, overturned Ozaukee County Judge Paul Malloy’s ruling ordering a voter purge and invalidated his decision that found the Wisconsin Elections Commission and some of its members in contempt for failing to purge the rolls.
For now, the registrations of thousands of voters the state determined were likely to have moved can remain valid for the April 7 presidential primary and Supreme Court election. A voter who has moved is required to register at his or her new address.
WILL is asking the Supreme Court to issue a ruling no later than June 19 to be in effect for the Aug. 11 primary.
In October, the Elections Commission sent a letter to about 234,000 voters it identified as potentially having moved. It asked those voters to update their voter registrations if they moved or notify elections officials if they still reside at the same address. Because some of the voters flagged as having moved in a 2017 mailing never actually did, the commission opted to wait until 2021 to deactivate the registration of voters who didn’t respond to the October mailing.
Elections officials sent the letters based on information obtained through the nonprofit Electronic Registration Information Center, or ERIC, which flags potential movers. The commission reviews the information to ensure accuracy.
ERIC obtains data from a variety of sources to flag voters who may have moved, such as Wisconsin motor vehicle records, voter registration and motor vehicle records from participating states, along with the National Change of Address database from the U.S. Postal Service.
Wisconsin law states “the clerk or board of election commissioners” shall deactivate a registered voter if he or she fails to respond to a mailing from the Elections Commission within 30 days.
WILL argues the law makes clear that the registrations of voters who didn’t respond to the commission’s mailing within a month should be purged from the rolls. But the commission, through the Department of Justice, argued the law doesn’t apply to the commission, but rather to municipal clerks and the Milwaukee Election Commission. The appeals court sided with that thinking.
Conservative-backed Supreme Court Justice Daniel Kelly, who is running for election, recused himself from the case, but told the Capital Times Wednesday he would “rethink” his decision to not participate once the April 7 election is over.
The state Elections Commission announced this week it had used ERIC to identify 43 cases of suspected cross-state voting in the 2018 general election.
The commission has sent the criminal referrals, which represent about .002% of the more than 2.6 million ballots cast in the election, to district attorneys in 19 counties. State law prohibits double-voting, or anyone from intentionally voting more than once in a single election.
Commission spokesman Reid Magney said this is the first time it has done voting comparisons with other states. Additional information on which counties saw criminal referrals was not available.
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