The battle over an effort to force the Wisconsin Election Commission to follow state law to clean up the voter rolls is heating up.
The state Election Commission deadlocked on Monday on how to respond to Friday’s ruling by Judge Paul Malloy that the commission had to remove the voter registrations of those believed to have moved who did not respond to a state mailing.
However, the Election Commission’s failure to agree on a response did not prevent Wisconsin Attorney General Josh Kaul and the commission from filing an appeal of Malloy’s ruling on Tuesday. The League of Women Voters also jumped into the fight with a lawsuit in federal court attempting to block the removal of the non-responding voters from the voter rolls.
Malloy’s ruling was the result of a lawsuit by the Wisconsin Institute of Law & Liberty (WILL) on behalf of three plaintiffs. Rick Esenberg, general counsel and the president of WILL, responded to Kaul’s appeal with a statement Tuesday.
“It’s unfortunate the Wisconsin Elections Commission is prolonging this dispute when Judge Malloy found the state agency in clear violation of state law,” Esenberg said. “But we look forward to making the case, once again, that the Wisconsin Elections Commission must follow state law and protect the integrity of Wisconsin elections.”
In the case filed in federal court, the League of Women Voters, a Democratic-leaning special interest group, is alleging that the clean up of the voter rolls should not take place because the Election Commission misled voters on how they could maintain their voter registration without responding to the state mailer.
“The lawsuit also claims the purge violates the Due Process Clause because the Wisconsin Elections Commission told voters who did not move and had received the letter in error that they could confirm their voter registration addresses by voting in the next election, leading these voters to believe they could use and rely on this method to stay on the rolls and vote,” the League said in a statement. “If the purge instead occurs immediately, it would be an about-face from what voters were told in October 2019 because these voters will have their registrations cancelled before they have the chance to confirm them.”
Esenberg agreed that the Election Commission misinformed voters, but disagreed that this should result in preventing the clean up of the voter rolls.
“This new federal lawsuit does not challenge the applicability of state law with regard to the movers list,” Esenberg said. “It does challenge the Wisconsin Elections Commission’s unfortunate decision to provide misinformation to voters. While it would be premature for a federal court to become involved in this matter, we have said from the beginning that we have no objection to WEC correcting the misinformation that they have provided to voters.”
To maintain an accurate voter registration list, Wisconsin and 28 other states participate in a program called the Electronic Registration Information Center (ERIC). When a voter conducts an official government transaction using an address different than their voter registration address, ERIC flags the voter to state election agencies as a “mover.” After an Election Commission review, a notice is sent out to the “movers” asking them to verify their address.
According to state law, “If the elector no longer resides in the municipality or fails to apply for continuation of registration within 30 days of the date the notice is mailed, the clerk or board of election commissioners shall change the elector’s registration from eligible to ineligible status.”
If the commission does not receive a response, then the voter is moved to “inactive” status.
If the voters did move, they would be required to register to vote at their new address. Either way, state law allows individuals to register the day of the election.
However, the Election Commission determined in June that such a voter will be moved to “inactive” status after 12 to 24 months, not after 30 days. The agency had hoped to delay the registration removals until after the 2020 Spring elections.
In his ruling, Mallow said changes to the law would have to be made by the legislature.
“I don’t want to see anybody deactivated, but I don’t write the legislation,” Malloy said, according to the Associated Press. “If you don’t like it, then I guess you have to go back to the Legislature. They didn’t do that.”
Despite the ease of re-registering, including same-day voter registration, Democrats have been sharply critical of the lawsuit and Malloy’s ruling. They have engaged in protests accusing Republicans of trying to suppress the vote. The Democratic Party is also cashing in with fundraising emails and even selling t-shirts critical of the ruling.
Governor Tony Evers is telling supporters in fundraising emails the cleaning of the voter registrations is directed towards him. Normally, Evers claims he represents “the will of the people.” However, his latest appeals point out the narrowness of his victory in 2018.
“Tony won in 2018 by just 30,000 votes, and we all remember how close Democrats were in 2016,” wrote the Evers campaign. “That’s why it’s so crucial that we fight back.”
Ironically, the chairman of the Democratic Party of Wisconsin made it clear on Monday that the removal of the questionable voter registrations will not be a major problem for voters.