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Voter Removal Case: Many Motions Pending In Wisconsin Appellate Courts

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Darren Hauck
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Voters cast their midterm ballots at the District 5 Ward 83 firehouse on Nov. 6, 2018 in Milwaukee, Wis.

Updated Dec. 23, 2019 at 2:11 p.m. CT

On Friday Dec. 20, 2019, the conservative law group, Wisconsin Institute For Law & Liberty, (WILL) requested that the Wisconsin Supreme Court bypass the Wisconsin Court of Appeals on an appeal of the voter roll case filed by the state Department of Justice last Tuesday. The state DOJ is seeking to block removal of roughly 234,000 voters from the voter rolls, and WILL is seeking to expedite it. The state supreme court is made up of five conservatives and two liberals. It is unclear at this point how either court would rule on a stay of the removal of the voters-- a request the Wisconsin DOJ made on Tuesday.

The Associated Press also reported that one of President Trump's top reelection advisers told Wisconsin Republicans at a private event in November that the GOP has "traditionally" relied on voter suppression to win elections in battleground states. The official, Justin Clark, said the Trump Campaign and Republicans need to "go on the offensive," and protect their voters now that restrictions on Republicans conducting monitoring at polls have been lifted. Wisconsin Democrats responded by saying "the mask is off" and that the GOP strategy of voter suppression has been exposed. The Trump adviser responded, reports the AP, by saying that he was referencing that the GOP has traditionally been falsely accused of suppressing votes.

On Wednesday, Dec. 18, 2019, a Wisconsin appeals court denied a request to immediately put on hold the removal of the voters from the rolls before it hears from the other side. The state appeals court is giving the conservative law firm that brought the lawsuit until Monday to respond to the request from the Wisconsin Department of Justice. 

On Tuesday Dec. 17, 2019, the Wisconsin DOJ filed an appeal of the state trial judge's written order purging the voters from the voter rolls.

The League of Women Voters of Wisconsin then filed a companion federal lawsuit on Tuesday, seeking to halt the purge. The main argument is that voters' due process rights are being violated and the notices should be sent out again.

On Friday, Dec. 13, the trial judge sided with a conservative-group's lawsuit challenging the Wisconsin Elections Commission. The commission was sending notices to voters who were flagged as having moved and giving them up to two years to respond before deactivating them.

READ: Judge Orders Wisconsin Elections Commission To Purge Voter Rolls

In Wisconsin, a system used by the Elections Commission flags voters who may have moved. It's called ERIC, the Electronic Registration Information Center, and 28 states and the District of Columbia participate. The goal is to keep voter rolls up to date. The commission sends a letter and if the voter doesn't respond, eventually, they're pulled from the rolls — requiring them to register again for any upcoming elections.

Because people had been wrongly flagged as movers by ERIC before the 2018 primary, the commission allowed potential movers two years to update addresses. 

READ: Thousands Of Milwaukee Voters Could Be Required To Reregister Due To Errors

Democratic-appointed Wisconsin Elections Commissioner Mark Thomsen says, "Those people who have properly registered have a right to go vote without having to register again. That is an unconstitutional burden on them."

The commission approved the two-year period 5-1, across party lines.

But a conservative group, the Wisconsin Institute for Law & Liberty, filed suit in November. It argued that state law requires the commission to purge voters from the rolls if they don't respond within 30 days of the mailing. The trial judge agreed.

READ: Lawsuit Could Deactivate 234,000 Voters In Wisconsin

WILL Attorney Rick Esenberg says, "We're happy that the judge decided to enforce the law as it's written. The Legislature has decided that it doesn't want to have a lot of people on the voter rolls who are registered at addresses in which they no longer reside, and set up a process to clean up the rolls."

He says ERIC must be reliable, not perfect. Esenberg also says that voters aren't deactivated as soon as there's information they may have moved — they're notified by letter and given a chance to respond. He adds that Wisconsin's same-day registration ensures that voters won't be disenfranchised.

Esenberg says purging voters who have moved prevents problems with election administration and voter fraud.

"Happily most people will not engage in fraud, but the courts have long held that it's appropriate for states to take reasonable steps to prevent themselves, to protect themselves and protect voters against that type of fraud," he says.

Democrats, like election commissioner Ann Jacobs, say fraud is few and far between. From February 2018 to February 2019, the Wisconsin Elections Commission found 24 suspected cases of voter fraud out of 2.7 million votes cast in the November midterms. And Jacobs says same-day registration is not a remedy for people who haven't moved being booted from the rolls.

"Most of us do not go to the polls assuming we're going to have to register," she says. "Because registering at the polls does require that you bring proof of residence and other documents with you, and we're not walking around with them on us. So, what it means is if you get to the polls and you're kicked off, suddenly what was going to be a quick and easy opportunity to vote becomes much more time consuming."

On Monday, the GOP appointed commissioners made a motion to purge the voter rolls within seven business days of the judge issuing a written order. Democrats on the commission blocked that, arguing it makes no sense because an appeal was inevitable.

That appeal happened on Tuesday after the trial judge issued his written order. It's possible for the appellate courts to order a stay of the purge, which means it wouldn't go into effect unless there's an appellate decision affirming the trial court.

The case is expected to end up in the Wisconsin Supreme Court, which has a 5-2 conservative majority.

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