The state Supreme Court ruled today the Elections Commission has no power to remove from the rolls thousands of voters who may have moved, but didn’t respond to a mailer seeking to confirm their address.
In the 5-2 ruling, the court found that responsibility rests with local elections officials and there is “no credible argument” otherwise. It also ruled an Ozaukee County judge had erred in ordering the state commission to purge the rolls ahead of the 2020 election.
The Supreme Court also ruled Judge Paul Malloy’s contempt order against the commission and its three Dem members for failing to immediately comply with his order also must be reversed.
“[R]emedial sanctions cannot remain for failure to obey what we have determined was an unlawful writ of mandamus,” Justice Brian Hagedorn wrote for the majority.
The commission’s failure to remove possible movers from the rolls was one of numerous complaints Donald Trump’s backers cited in trying to cast doubt on the 2020 election results.
In September 2019, some 232,579 possible movers were on the list that would be impacted by a ruling. That was down to 71,579 by the start of this year.
Still, the Elections Commission reported earlier this year none of those 71,579 voted in November. It also found 16,698 were improperly identified by the system as possibly having moved.
Hagedorn was joined by fellow conservative Pat Roggensack, as well as liberals Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky.
Justice Rebecca Bradley wrote in a dissent joined by fellow conservative Annette Ziegler that the majority opinion “leaves the administration of Wisconsin’s election law in flux, at least with respect to ensuring the accuracy of the voter rolls.”
The state uses the multi-state Electronic Registration Information Center to identify voters who may have moved. In 2019, the Elections Commission decided it would wait until 2021 to remove from the rolls voters who were identified as possibly having moved and failed to respond to a mailer seeking to confirm their address.
That prompted a lawsuit that resulted in Malloy ordering the commission to remove possible “movers” from the rolls within 30 days, and the commission split 3-3 along party lines on complying with the order while it was appealed.
The Supreme Court passed on hearing the appeal directly, and the 4th District Court of Appeals then overturned the circuit court ruling. The appeals court found the commission didn’t have the authority to remove the voters, and that power was reserved for local clerks and boards of election commissioners.
The appeals court also stayed and eventually overturned Malloy’s contempt order that required the three commissioners to pay a forfeiture of $250 a day and the commission $50 a day until they complied with his order.
While affirming the appeals court decision, the majority opinion also chided the commission for its actions following Malloy’s order, writing “its duty to comply with the circuit court’s writ of mandamus was not relieved simply by seeking a stay before an appellate court.”
In her dissent, Bradley argued that reading state election laws in their totality supported the argument that the Elections Commission shared responsibility in maintaining the voter rolls. She also noted the commission had previously removed voters believed to have moved.
She also torched the commission for failing to immediately comply with Malloy’s order, as well as the 4th District and the Supreme Court for not enforcing the penalty and condoning the commission’s behavior.
“In addition to contaminating Wisconsin’s elections, WEC’s refusal to obey the circuit court’s order harmed the integrity of Wisconsin’s justice system,” she wrote.