The Wisconsin Institute for Law & Liberty (WILL) is asking the state’s highest court to overturn a stay issued by the Appeals Court in Madison in a key voter registration case. However, an order issued by the Appeals Court late Tuesday may short-circuit this attempt.

The petition of supervisory writ states that the Appeals Court, “…violated a plain duty by staying the enforcement of the Circuit Court’s writ of mandamus and contempt order without explaining its reasoning, in contravention of this Court’s decision in State v. Scott.”

“The Court of Appeals is required to provide some explanation when issuing a stay,” said Rick Esenberg, President and General Counsel for WILL, in a statement released Tuesday. “To date, the Court of Appeals has provided nothing. Whatever reasoning may follow, we’re asking the Supreme Court to consider whether a stay is warranted at all.”

The Appeals Court’s stay order put on hold Ozaukee County Judge Paul Malloy’s order to the Wisconsin Election Commission to remove the voter registrations of those identified by the state of Wisconsin as having moved from their residences where they are registered. The stay by the Appeals Court also put on hold Malloy’s contempt of court fines for the three Democratic members of the Election Commission who voted against compliance with Malloy’s order and the contempt fines for the Election Commission as a whole.

The Ozaukee County judge fined the Commission $50 a day, and fined its three Democratic members $250 a day until they complied with his original order. 

The Appeals Court stay of a lower court’s orders was issued after the Wisconsin Supreme Court announced it would not be taking the case directly following a 3-3 split decision on January 13.

The three-judge panel of the Appeals Court that issued the stay promised a follow-up order to explain their reasoning, but no order was issued by the time of WILL’s petition. Judges JoAnne Kloppenburg, Michael Fitzpatrick and Jennifer Nashold were the members of the three-judge panel.

But the Appeals Court issued the reasons for its order on Tuesday after the WILL petition was filed. In the written order for the stays, the Appeals Court panel said the Election Commission is likely to prevail in the case.

“In particular, the statutory subset upon which the circuit court ordered the Commission to deactivate certain voter registrations is based, Wis Stat § 6.50(3) does not place any authority in, or duties on, the Commission,” the Appeals Court order states. “In fact, § 6.50(3) does not mention the Commission.”

According to state law, “Upon receipt of reliable information that a registered elector has changed his or her residence to a location outside of the municipality, the municipal clerk or board of election commissioners shall notify the elector by mailing a notice by 1st class mail to the elector’s registration address stating the source of the information. All municipal departments and agencies receiving information that a registered elector has changed his or her residence shall notify the clerk or board of election commissioners. 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. Upon receipt of reliable information that a registered elector has changed his or her residence within the municipality, the municipal clerk or board of election commissioners shall change the elector’s registration and mail the elector a notice of the change.”

The Appeals Court panel claims in its order that the “board of election commissioners” does not mean the state Election Commission but a county or municipal board of election commissioners.

If the Wisconsin Supreme Court overturns the stays granted by the Appeals Court, Malloy’s contempt orders and the order regarding the removal of the voter registrations in question would be in effect.

Currently the case, and the court orders that have been stayed by the Appeals Court, are unlikely to be resolved in time for any of the elections in 2020. However, a reversal of the Appeals Court by the state Supreme Court would mean that the status of the questionable voter registrations would again be in doubt for the spring Supreme Court election as well as the special election in the 7th Congressional District.

The Supreme Court currently has five conservative members and two liberal members. However, conservative Justice Brian Hagedorn joined with the two liberals on the court, Justices Ann Walsh Bradley and Rebecca Dallet, in leaving the issue in the hands of the Appeals Court.

Conservative Justice Dan Kelly recused himself from the case since he is currently seeking to be elected to a full term to the court in the Spring Election and the results of the case could affect that election. Kelly is facing Jill Karofsky and Ed Fallone, two liberal candidates. The primary is February 18, with the top two candidates advancing to the April 7 Spring Election.

At issue is the behavior of the state Election Commission after a mailing to voters who have been identified by the state of Wisconsin as moving from the residences where they are registered.

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.

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, after the 2020 elections, not after 30 days.

The state sent out a mailing to voters in October. When the Election Commission failed to follow state law and remove the questionable registrations after 30 days, WILL filed the lawsuit on behalf of three Wisconsin voters in November.

Democrats fighting the implementation of the state law contend that the ERIC program has too many errors to be relied upon to determine which voters have moved. They also contend that the law does not apply to the Wisconsin Election Commission since the commission took over the responsibility for maintaining voter registrations after the law was passed by the legislature.