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Wisconsin Spotlight | June 2, 2020

MADISON — The Wisconsin Supreme Court will hear a critical election integrity case that will determine whether the state’s elections regulator has to clean up Wisconsin’s voter rolls — filled with the registrations of some 200,000 voters suspected to have moved. 

The Wisconsin Institute for Law & Liberty (WILL) filed the petition for review in February on behalf of three Wisconsin residents after the District IV Court of Appeals in Madison overturned a lower court ruling demanding the Wisconsin Elections Commission (WEC) declare ineligible long-lapsed voter registrations. 

Ozaukee County Circuit Judge Paul Malloy had found that the commission clearly violated state law requiring the regulator to change tens of thousands of outdated registrations from active to inactive. And Malloy held Elections Commission members in contempt of court and assessed thousands of dollars in fines after the agency failed to clean up the voter rolls. 

The liberal Madison-based appeals court ruled that Wisconsin statute 6.50(3) did not apply to and imposed no duty on the Elections Commission. Because the agency is not bound by the law, the appeals court determined, it could set rules maintaining the voter rolls and Malloy could not hold commission members in contempt for failing to follow the statute. 

WILL’s petition before the Supreme Court charges, as its original complaint did, that the law “placed a plain and positive duty on WEC” to clean up the voter rolls in a timely fashion. The Milwaukee public-interest law firm further asserts that the appeals court was wrong in disregarding what was the clear intent of the state Legislature. 

Last year, the commission approved a rule that would allow registrations of suspected movers to remain on the rolls for two years. Election integrity advocates say that extended grace period could lead to voter fraud, with ballots cast by individuals not eligible to vote.

Opponents of cleaning up the voter rolls, many who are also calling for vote-by-mail elections without voter ID, insist removing the lapsed registrations will disenfranchise voters. Wisconsin’s expansive voter registration laws, however, allow eligible Wisconsin residents to register all the way up to and on election day.

With growing concerns of voter fraud in a hotly contested presidential election ahead, cleaning up the voter rolls is critical for free and fair elections, advocates say. As Wisconsin Spotlight and Empower Wisconsin have reported, dozens of cases of suspected voter fraud occurred in the 2018 election, and a former federal prosecutor claims the FBI is sitting on cases of double voting in Milwaukee. 

In March, state Sen. Kathy Bernier (R-Chippewa Falls) filed a complaint with the Wisconsin Elections Commission, about clerks in Dane and Milwaukee counties advising voters that they did not have to follow voter ID laws while voting during the pandemic. Bernier said the clerks received the guidance from a WEC staff attorney. The commission has yet to respond to Empower Wisconsin’s information request on the claim. 

Rick Esenberg, WILL’s president and general counsel, said his law firm is pleased the Wisconsin Supreme Court agreed to hear “this critical case.” 

“Recent months have made clear that state agencies, like the Wisconsin Elections Commission, must be held accountable when they ignore state law.”

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