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WILL petitions Supreme Court to review voter rolls ruling

Empower Wisconsin | March 12,  2020 

By M.D. Kittle 

MADISON — Three plaintiffs in a nationally watched elections integrity case are asking the Wisconsin Supreme Court to review a lower court ruling allowing hundreds of thousands of voters suspected of moving to remain on the state’s voter rolls.

Timothy Zignego, David W. Opitz and Frederick G. Luehrs, III originally filed a lawsuit charging the Wisconsin Elections Commission ignored state law and failed to clean up the voter registration database. 

In December, Ozaukee County Circuit Judge Paul Malloy ordered the Elections Commission to comply with the state law and remove old and outdated voter registrations from the rolls. The commission, made up of three members appointed by Democrats and three appointed by Republicans, split in a 3-3 vote, with Democrat members voting against complying with the judge’s order. Malloy held the three members in contempt of court and threatened to lodge daily fines against the commission. 

Late last month, the District 4 Court of Appeals based in Madison overturned Malloy’s decision and invalidated his order holding the Elections Commission in contempt. 

“In interpreting the Wisconsin Statutes, courts may not rewrite the plain language of the statutes the legislation has enacted,” a panel of the appeals court wrote. “Acceptance of the arguments of Plaintiffs would cause us to rewrite statutes enacted by the legislature and we cannot do that.” 

The argument is rich coming from arguably the most liberal court in the state, a court often accused of issuing judicial activist decisions that have the effect of re-writing legislation. 

This case is no exception, according to the Wisconsin Institute for Law & Liberty, the Milwaukee-based public interest law firm representing the plaintiffs. WILL’s filing with the Supreme Court notes Wisconsin statute 6.50(3), which clearly describes the Elections Commission’s duty if a voter does not respond to a notice seeking proof of residency. 

“If the elector … 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 (Emphasis added),” the statute states. 

A Wisconsin Elections Commission policy approved last June would allow names of voters suspected to have changed addresses to remain on the voter rolls for up to two years. That raises some serious threats to voter integrity in a hotly contested presidential election year. 

“This is a critical matter for our state,” said Rick Esenberg, Will’s president and general counsel. “Wisconsin voters deserve to have confidence in the integrity of this year’s elections. We hope the Supreme Court agrees to review this case and provide clarity on the actions of the Wisconsin Elections Commission.”

Critics of purging the voter rolls claim doing so would disenfranchise thousands of voters in a critical election year. But Wisconsin’s status as a same-day registration state dilutes many of those concerns. 

WILL’s case becomes even more imperative, perhaps, following news that the commission has referred to local district attorneys offices 43 cases of alleged double voting in the 2018 general election. The incidents were picked up by the Electronic Registration Information Center (ERIC). Wisconsin and more than two dozen other states are members of the data-sharing network. 

“By statute, Wisconsin now participates in and receives reports from ERIC regarding what are referred to as ‘Movers. This refers to Wisconsin residents who have actually reported an address different from their voter registration address in an official government transaction,” WILL’s court filing notes. 

The law firm argues that the questions before the Supreme Court will recur each year that the Elections Commission receives a “Movers report” from ERIC and “has to take action based on this report.”  The questions must be resolved by Wisconsin’s high court, the petition asserts.

WILL previously had asked the Supreme Court to intervene, but a 3-3 tie (with Justice Daniel Kelly recusing himself) kept the court from taking up the case. 

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