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Appeals court sides with lawless agency

Empower Wisconsin | Jan. 15, 2020

MADISON —  It’s been a whirlwind week for a key voter integrity case.

On Monday, Ozaukee County Judge Paul Malloy found three Democrat commissioners on the six-member Wisconsin Elections Commission in contempt of court. The judge fined them $250 for each day they refuse to remove from the state’s voter rolls the 200,000-plus outdated registrations of individuals suspected to have moved out of their districts. He also fined the agency itself $50 per day for failing to comply with his order, issued in December.

But the victory for the rule of law was short-lived when the Wisconsin Supreme Court, also on Monday rejected an expedited appeal of Malloy’s December ruling.

A 3-3 split, with conservative Justice Brian Hagedorn siding with the court’s two liberal members, resulted in the denial. Justice Daniel Kelly, a conservative running for a full 10-year term, did not participate.

Within hours of the Supreme Court’s decision, Wisconsin’s 4th District Court of Appeals moved to stay the cleaning of the voter rolls.

The Madison-based 4th District, among the most liberal courts in the Badger State, also stayed the lower courts contempt of court finding.

The three Election Commission Democrats weren’t merely opposed to Malloy’s order, they snubbed it. He said commissioners Ann Jacobs, Mark Thomsen and Julie M. Glancey, were “condescending” in shrugging it off.

Thomsen, arguably the worst offender, snidely said during a recent commission meeting, “The law isn’t the law until the Court of Appeals says what it is …”

Jacobs told reporters after the judge’s ruling that she thinks Malloy’s initial findings were incorrect and that she still didn’t want to take voters off the rolls.

“If we are going to treat voting as the central component of our democracy, we need to be far less cavalier about taking people off the rolls,” she told the Milwaukee Journal Sentinel. 

But the full commission last year cavalierly disregarded state law requiring the removal of voters believed to have moved. That law demands that action take place within 30 days after confirmation — not one to two years later as the commission had ordered.

“If people are free to disregard a court’s order, where do you start and stop with that?” Malloy said in court Monday. “How do you enforce that? What happens to our justice system if people say that’s just one guy’s interpretation? What happens when people no longer come to court when they are subpoenaed? Our justice system will cease to work.”

WILL argued as much in its motion asking Malloy to hold the commission in contempt of court. The conservative public interest law firm late last year sued the Wisconsin Election Commission, alleging it broke the law by not clearing its voters rolls of outdated registrations.

“Court orders are not, and have never been, optional. It is our hope that today’s decision will cause the Wisconsin Elections Commission to finally follow state law,” Rick Esenberg, Will’s president and lead counsel, said in a statement.

Now, thanks to the appeals courts, the Wisconsin Elections Commission doesn’t have to follow Malloy’s order — and the state’s voter rolls will remain as they are as the crucial election year beckons.

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