Over 129,000 voters could be removed from the rolls after the state Supreme Court Monday agreed to hear a case challenging the Wisconsin Elections Commission’s handling of a mailer to those who may have moved.

But it’s unclear whether conservative Justice Daniel Kelly will participate in the case.

Kelly, who lost a bid in April for a full 10-year term on the court to liberal Jill Karofsky, is set to leave the high court at the end of July. The briefing schedule laid out by the court Monday could take as long as 60 days while oral arguments could add on more time, potentially pushing the court’s decision until after Kelly’s term in office expires.

Court Information Officer Tom Sheehan told WisPolitics.com to “rely on the wording of the orders” when asked if Kelly would participate in the case.

Kelly recused himself in December when the state Supreme Court deadlocked 3-3 on taking the case directly before it went to an appeals court. Conservative Brian Hagedorn sided with the court’s two liberals in declining to take the case directly.

Kelly said at the time he wanted to avoid hearing a case that could’ve impacted his April election. But he announced he would lift his recusal after the loss, writing in a brief he had “an affirmative duty to hear every case in which there is no ethical bar to my participation.”

“I have concluded that, in light of the fact that this case cannot now affect any election in which I would be a candidate while the case is being decided, there is no ethical bar to my participation,” he wrote in April.

The latest number of suspected movers is down by more than 100,000 from the roughly 234,000 voters who were asked to confirm their address last October.

Those voters were identified by the Election Registration Information Center as having a transaction with the U.S. Postal Service or state Department of Motor Vehicles that listed an address different from their voting address.

Commission staff during the panel’s May 20 meeting said 129,151 of the suspected movers still had not responded to a mailing asking for address confirmation. Some 57,000 voters confirmed they had moved and reregistered at a new address while roughly 4,700 said the address on file was still correct. Of those who said their original address was correct, roughly 3,600 confirmed their address by casting a ballot in either the February or April elections.

The remaining 42,000 voters were deemed ineligible for a variety of reasons. According to a staff memo, those registrations could have deactivated because the voter: moved out of state; was deemed incompetent; died; was convicted of a felony conviction; or requested deactivation. In addition, a local clerk could have received “reliable information” that the voter moved or is ineligible.

A commission spokesman said those numbers are subject to change as potential movers are still able to confirm or change their address.

Last June, the commission voted unanimously to postpone deactivation of those on the ERIC list until 2021. Previously, voters who did not respond to the mailing within 30 days were deactivated.

That move drew a legal challenge from the conservative Wisconsin Institute for Law & Liberty, which argued state law required deactivation after 30 days. The commission countered the statutory language cited in the WILL lawsuit did not apply to WEC but rather to elections panels in the city and county of Milwaukee.

An Ozaukee County judge initially sided with WILL and held three Dem commissioners and the commission itself in contempt for not striking the suspected movers from the rolls. But after the Supreme Court deadlocked on taking an appeal directly, a three-judge panel in the Madison-based 4th District Court of Appeals overturned both Judge Paul Malloy’s ruling in the case and the contempt finding.

WILL President and General Counsel Rick Esenberg said he was pleased the high court is set to take the case.

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

A commission spokesman declined to comment on the case.

Read the order:

See the latest movers data starting on page 41:

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