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Friday, July 30th, 2021
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MADISON — Voter integrity suffered another defeat last week at the hands of the Wisconsin Supreme Court.

In a 5-2 decision, the conservative-led court sided with Democrats in ruling that it’s not the Wisconsin Elections Commission responsibility to clean the state’s voter rolls of voters suspected to have moved. Never mind WEC had been doing so for years, up until it stopped in 2019 — as a hotly contested presidential election approached.

The majority — including conservative justices Brian Hagedorn and Chief Justice Patience Roggensack — said a lower court  was wrong in ordering WEC to clean up the rolls. They agreed with an appeals court, which found Ozaukee County Judge Paul Malloy’s contempt order against a recalcitrant commission could not stand.

The ruling lets WEC off on a technicality — more so, a turn of phrase.

Writing for the majority, Hagedorn dismisses the idea that the Wisconsin Elections Commission is responsible for removing outdated voter registrations from the list. He wrote that the law states “the municipal clerk or board of election commissioners” has the duty. That’s not the same as the Elections Commission, the justice wrote. In short, it’s a local issue, not a state matter.

The Wisconsin Institute of Law & Liberty disagrees.

WILL sued the Elections Commission asserting it had neglected its duties in keeping more than 200,000 voters who may have moved or died on the rolls. Rick Esenberg, president and general counsel of the Milwaukee-based law firm, said the ruling is a “disappointing setback for those who expect Wisconsin State agencies to follow the law.”

“The Court held today that the legislature created a duty and failed to provide an effective way for that duty to be carried out or enforced by voters. We respectfully disagree,” Esenberg said.

He said it’s up to the Legislature to “fix the law.”

“WILL remains committed to the rule of law and to a reasonable set of election rules that acknowledges that the right to vote involves both convenience and assurances of accuracy and integrity,” Esenberg added.

Justice Rebecca G. Bradley, one of two conservative justices dissenting, said the majority left out some important language in the law. The Wisconsin Elections Commission is “responsible for the design and maintenance of the official registration list,” the statute states. “To maintain” clearly informs the commission of its duty to keep the voter rolls up to date, which it had done until 2019 when it decided not to.

It’s really not a choice, though. There’s a federal tie here that’s extremely important.

“Recognizing WEC’s responsibility to ensure the accuracy of the voter rolls ensures the state’s compliance with the federal Help America Vote Act (HAVA), which Wisconsin is bound to follow,” Bradley wrote. “Reading these statutes as a whole reveals WEC’s ‘positive and plain duty” to fulfill its statutory responsibility to change the status of ineligible voters…”

So, the lower court judge was right.

But the majority has spoken, as tens of thousands of flagged voters remain on the state’s active voter list — and many thousands more remained there through November’s presidential election.

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July 30, 2021

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