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PORT WASHINGTON – An Ozaukee County judge on Friday ordered the state to remove hundreds of thousands of people from Wisconsin’s voter rolls because they may have moved.
The case is being closely watched because of the state’s critical role in next year’s presidential race. Circuit Judge Paul Malloy also denied the League of Women Voters of Wisconsin’s petition to intervene.
Lawyers for the League and for the Wisconsin Elections Commission indicated they will appeal and asked Malloy to stay his ruling pending those appeals, but he declined.
At issue is a letter the state Elections Commission sent in October to about 234,000 voters who it believes may have moved. The letter asked the voters to update their voter registrations if they had moved or alert election officials if they were still at their same address.
The commission planned to remove the letter’s recipients from the voter rolls in 2021 if it hadn’t heard from them. But Malloy’s decision would kick them off the rolls much sooner, and well before the 2020 presidential election.
Before Friday’s hearing, Democratic Attorney General Josh Kaul said in an interview that quickly removing voters from the rolls would cause “clear harm to Wisconsin voters.” That’s because some people who haven’t moved would likely lose their ability to vote, at least for the time being.
“Any time people have to go through extra steps to vote, and certainly re-registering is a significant additional step, the result is that fewer people end up voting,” he said. “Fewer people will be registered. A number of people will have to re-register.”
RELATED: What to know about the legal fight over who should be on Wisconsin’s voter rolls
Three voters sued the commission last month with the help of the conservative Wisconsin Institute for Law & Liberty. They argued election officials were required to remove voters from the rolls 30 days after sending the letters if they hadn’t heard from them.
They asked Malloy to issue an injunction that would require election officials to purge their rolls. Kaul, commissioners and others say that would lead to some people getting knocked off the rolls who shouldn’t be.
But Malloy went further than issuing an injunction. In granting a writ of mandamus — essentially a court order that a government official or agency do its job — he said he was convinced the commission had a clear, positive, plain legal duty to purge the voter rolls within 30 days.
“I don’t want to see someone deactivated, but I don’t write the law,” said Malloy, who was appointed to the bench in 2002 by Republican Gov. Scott McCallum and has been re-elected by voters.
He said the commission didn’t like the policy so it set a new one without following a formal rule-making procedure that would have included notice to the public and a chance for input.
“There’s no basis for saying 12 to 24 months is a good time frame. It’s not that difficult to do it sooner,” he said near the end of a two-hour hearing. “If you don’t like (it), you have to go back to the Legislature.”
Democratic Gov. Tony Evers on Twitter railed against the ruling.
“I won the race for governor by less than 30,000 votes,” he wrote. “This move pushed by Republicans to remove 200,000 Wisconsinites from the voter rolls is just another attempt at overriding the will of the people and stifling the democratic process.”
Elections officials sent the letters based on information compiled by the Electronic Registration Information Center, or ERIC, a coalition of 28 states and Washington, D.C. that tries to keep voter rolls as accurate as possible.
ERIC flags voters who file address changes with the post office or register vehicles at new addresses.
The Elections Commission, which consists of three Democrats and three Republicans, doesn’t want to immediately remove people from the voter rolls because in some cases their information is faulty and the voters haven’t moved. For instance, people could be flagged as having moved if they registered a vehicle at a business address instead of their home address.
Voters who are removed from the voter rolls, whether correctly or mistakenly, can regain the ability to cast ballots by re-registering online, at their clerk’s office or at the polls on election day.
Of the 234,000 letters that were sent, about 60,000 were returned as undeliverable as of Dec. 5, according to the Elections Commission. As of then, about 2,300 recipients of the letters said they continued to live at their address and about 16,500 had registered to vote at new addresses.
Wisconsin is perhaps the most heavily targeted state in the 2020 presidential election. Donald Trump narrowly won the state in 2016 after it went to Democrats in presidential elections for decades.
The letters went to about 7% of Wisconsin’s registered voters, but were concentrated more heavily in some parts of the state than others.
Milwaukee and Madison — the state’s Democratic strongholds — account for 14% of Wisconsin’s registered voters but received 23% of the letters.
Across the state, 55% of the letters went to municipalities where Democrat Hillary Clinton out-polled Trump in 2016.
At Friday’s hearing, a lawyer from the Fair Elections Center in Washington, D.C., Jon Sherman, argued for the League of Women Voters. He said the state would not adequately protect the league’s interests, citing, as an example, the fact that it had not provided the kinds of evidence about the unreliability of ERIC data the league had already submitted.
For WILL, Rick Esenberg argued that while the league might have different theories and strategies for defending the commission, it was essentially taking the same position as the state, not to purge the names for a year.
Malloy agreed that the case before him was about the narrow construction of one statute and that letting the league raise other constitutional and policy concerns would make the case “fruitlessly complex.”
On the main case, Assistant Attorney General Karla Keckhaver argued the plaintiffs had no standing to sue, that the statute in question doesn’t apply to the Elections Commission, that WILL’s feared “irreparable harm” was based on a theory of voter dilution that assumes facts not shown and that deactivating thousand of voters registrations would change the status quo.
And, she said, it would “create chaos” to try to dump the voters and re-notify them before elections coming up in February.
But Malloy noted it wouldn’t be right to allow the Elections Commission to “bootstrap its authority to their own error,” and that the commission, in the past, acted as though the statute in question did apply to it.”
The commission issued a statement late Friday.
“We will be analyzing the judge’s oral decision and consulting with the six members of the Wisconsin Elections Commission on next steps. A written order has not been issued yet.”
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