The Wisconsin Supreme Court ruled Friday that the state elections commission should not remove from the rolls voters flagged as possibly having moved, something Democrats fought and conservatives have wanted done for nearly two years.
The court’s 5-2 ruling means about 69,000 people on the list of likely movers will not have their voter registrations deactivated. When the lawsuit was first brought in 2019, about 234,000 were on the list. Of those who remain, none voted in the 2020 presidential election, according to the Wisconsin Elections Commission. No voters had their registrations deactivated while the legal fight was pending.
The Wisconsin Institute for Law and Liberty, a conservative advocacy group, argued that the state elections commission broke the law when it did not remove voters from the rolls who did not respond within 30 days to a mailing in 2019 indicating they had been identified as someone who potentially moved.
But the court said the job of removing voters from the rolls was up to local municipal elections officials, not the state commission. It ordered the case dismissed.
Two of the court’s conservative justices, Chief Justice Patience Roggensack and Justice Brian Hagedorn, joined with liberal justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky in the majority. Hagedorn, who has sided with liberals in other high-profile cases, wrote the majority opinion.
Justices Rebecca Bradley and Annette Ziegler dissented. The two Bradleys are not related.
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The issue received a lot of attention before the presidential race.
Because voters who moved were concentrated in more Democratic areas of the state, liberals argued that the lawsuit was meant to lower turnout on their side. Republicans countered that it was about reducing the likelihood of voter fraud and making sure that people who moved are not able to vote from their previous addresses.
President Joe Biden carried Wisconsin by fewer than 21,000 votes, an outcome that withstood a two-county recount brought by former President Donald Trump and numerous lawsuits.
An Ozaukee County circuit court judge ruled in 2019 that the voters identified as possibly having moved must be removed from the rolls immediately. A state appeals court overturned that in February 2020. The Supreme Court heard arguments on the case in September and issued its ruling Friday, just three days after the state’s spring election.
The court upheld the appeals court ruling and ordered the case dismissed.
The law requiring the voter registration database to be updated regularly places that duty on the state’s 1,850 municipal election clerks, and there is “no credible argument” that the state elections commission should do it, the divided court said.
Rick Esenberg, attorney for the conservative group that brought the lawsuit, had argued that state law clearly gives the elections commission the responsibility to maintain the voter list. Esenberg called the ruling a “disappointing setback for those who expect Wisconsin state agencies to follow the law.”
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The dissenting justices said that the commission’s duty to maintain the voter registration database means that it is also responsible for ensuring that every law related to that list is carried out, whether the law specifically says that or not.
That interpretation of the law would be a “remarkable expansion of the Commission’s powers and responsibilities,” the majority wrote.
Esenberg called on the Republican-controlled Legislature to “fix the law” to explicitly require the commission to remove voters identified as possibly having moved.
Democratic Attorney General Josh Kaul, who represented the elections commission, called the ruling “a clear win for Wisconsin voters.”
Wisconsin Elections Commission Administrator Meagan Wolfe declined to comment immediately on the ruling, saying it was being analyzed.
The list of voters affected by the ruling has shrunk from about 234,000 to 69,000 for a variety of reasons, according to the elections commission. Based on a February memo, when the number stood at 71,000, 58% of the people originally on the list registered at a new address. Nearly 4% were inactivated by local clerks for a variety of reasons, including because they had died or moved. That left nearly 31% of the people originally identified as potential movers still on the list.
The commission is now considering sending mailings to voters who may have moved four times a year, rather than every two years, in order to more quickly flag those who may be registered at an old address.
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