Already rebuffed by the state Supreme Court once, the conservative Wisconsin Institute for Law & Liberty took a second crack Tuesday at getting the justices to intervene in a lawsuit seeking to force off the rolls thousands of voters who may have moved.
The group today asked the state Supreme Court to vacate two stays the 4th District Court of Appeals issued in the case. One placed on hold an Ozaukee County judge’s order that the Elections Commission deactivate the registrations of some 200,000 voters who may have moved. The other stayed Judge Paul Malloy’s contempt order against the commission and three Dem members for not carrying out his original order.
Hours after the filing, the appeals court released the ruling that included its rationale for issuing the stays.
The three-judge panel said it issued the stays largely for two reasons. One, the commission, which is appealing the Ozaukee County decision, has a strong likelihood of success. That’s because the section of state statutes that Malloy relied on to order the commission to deactivate registrations doesn’t “place any authority in, or duties on, the Commission.” It also doesn’t mention the commission, according to the ruling.
Two, the court ruled, the commission had demonstrated “that the likely harm to some voters in the absence of a stay outweighs the speculative harm to other voters that the respondents argue may occur if a stay is granted.”
Read the appeals court ruling:
WILL argued in Tuesday’s filing the appeals court violated its plain duty by failing to explain its reasoning in originally issuing the stay.
It also argued that regardless of its reasons, the 4th District shouldn’t have stayed the two rulings and shouldn’t issue anymore stays going forward.
The group also asked the Supreme Court to lift the stays while it considers the request to vacate them.
WILL previously asked the state Supreme Court to take over the appeal in the case. But the justices deadlocked 3-3 with conservative Daniel Kelly not participating, resulting in a rejection of the request.
After the court rejected the request, the appeals court issued the stays, saying it would lay out its reasoning in a future filing. That decision was what the court released today.
WILL argued there is an urgency to act because unless the appeals court “resolves this case within a fraction of the time that it normally does,” then its claims “will be substantially or entirely mooted” without a final decision from the appeals court and likely the state Supreme Court ahead of the 2020 elections.
“Thus, expeditious resolution of this case is critical – not only for the Petitioners but for the electors of Wisconsin,” the group argued in the brief.
The Elections Commission last year decided to give voters who may have moved until 2021 to respond to a mailing checking on their current address before deactivating their registrations. WILL filed suit on behalf of three voters arguing those who may have moved are only allowed 30 days to respond to the mailing under state law. Malloy sided with WILL and ordered the commission to deactivate the registrations, possibly impacting some 209,000 voters.
Tuesday’s filing comes after some conservatives criticized new Justice Brian Hagedorn for siding with two liberal colleagues in voting not to hear WILL’s request to take the appeal.
Read the filing here.