The Wisconsin Election Commission may be compelled to follow a court order to eliminate possibly obsolete voter registrations if a conservative legal group has its way.
Rick Esenberg, the president of the Wisconsin Institute for Law & Liberty (WILL), announced in a radio interview on Thursday that his organization will be asking Ozaukee County Judge Paul Malloy to enforce his December court order requiring the Election Commission to remove the voter registrations of voters who have changed their residence to another community.
“Because of the failure of the commission to comply with an existing court order, we have no choice but to file a motion to have the agency held in contempt of court,” Esenberg told Jay Weber of WISN-AM. RightWisconsin has the motion online.
The Election Commission at their Monday meeting refused to take action on Malloy’s court order. Democrats on the commission stated they wanted to wait until their appeal is heard and the commission deadlocked on a partisan 3-3 vote.
“The commission has the right to appeal if it wants to do so,” Esenberg told Weber. “But court orders are not suggestions and they’re not rendered inoperative by the fact that you filed an appeal. You have to follow them until you get relief.”
The motion filed by WILL asks Malloy to “impose a fine on the Defendants of $2,000 per day per Defendant until the Defendants establish that they are in full compliance with this Court’s Mandamus Order or that the Court issue such other order as the Court deems appropriate to ensure compliance with the previous Order of this Court.”
“The Defendants have had 20 days since this Court’s oral ruling and 15 days since the written Mandamus Order and have still failed to comply with this Court’s Order and, it is obvious that the Defendants do not intend to take any action to comply with this Court’s Order,” the motion by WILL states.
The Election Commission had requested Malloy to stay his order pending an appeal, but the judge refused. The Appeals Court has also refused to stay Malloy’s order.
“Until a court tells them that they do not have to comply, they do have to comply just like the rest of us would,” said Esenberg. “I don’t take any great pleasure in it but we have a primary election coming up in February and the agency hasn’t acted. They haven’t complied with a court order that’s been out there now for almost three weeks.”
At issue is a state law requiring the Election Commission to remove the voter registrations of those voters who failed to respond within 30 days to a state mailer inquiring about their residency status after they have been identified as moving out of the community where they were registered.
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. Voters whose registrations were affected by the state law could still re-register up to and including the next Election Day. Wisconsin has same-day voter registration.
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. When the Election Commission failed to follow state law, WILL sued on behalf of three Wisconsin voters.
On December 13, Malloy issued his order requiring the Election Commission to follow state law and remove the voter registrations in question. The written order was issued December 17.
“I don’t want to see anybody deactivated, but I don’t write the legislation,” Malloy said at the time, 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.”
The decision by Judge Malloy is currently being appealed by the state Attorney General Josh Kaul (D) despite a lack of a vote in support of an appeal by the Election Commission. WILL has requested the Wisconsin Supreme Court take the case directly.
Time is running short if the Election Commission is going to follow the law prior to the next election. As the motion by WILL points out, ballots for the special election in the 7th congressional district must be sent to municipalities on January 2 and will be available for request by absentee voters, including those voters whose voter registrations are in question.