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Wisconsin Appeals Court Puts Hold On Voter Removals

Scott Olson
Getty Images
A sign marks the location of a polling place on Aug.14, 2018 in Janesville, Wis.

Updated Tuesday at 2:46 p.m. CT

A Wisconsin appeals court has put on hold an order to immediately remove up to 209,000 names from the state's voter registration rolls, handing Democrats who had fought the move a victory in the battleground state. The appeals court also put on hold an ealier decision that found the Wisconsin Elections Commission to be in contempt.

Original story Monday at 5:23 p.m. CT

An Ozaukee Circuit Court judge held the Wisconsin Elections Commission in contempt on Monday for failing to remove more than 200,000 names from the state’s voter rolls. The judge says his original order to remove the names should go into effect regardless of any appeals.

The legal conflict originally started because of the elections commission’s decision to allow voters up to 2021 to respond to a request to confirm or update their address.

READ: The Fight Over Wisconsin's Voter Rolls Purge, Explained

The commission reasoned that previous experience with the system that flags potential movers — who would be required to reregister — showed the data is not totally reliable.

The commission is made up of three Democrats and three Republicans. It originally decided that because a percentage of voters flagged as movers haven’t actually moved, they should be given until after the November 2020 general election before being removed.

A conservative group, the Wisconsin Institute for Law and Liberty, sued, alleging that state law gives voters 30 days to respond — or be removed.

READ: Conservative Group Says Wisconsin Elections Commission Violating State Law

Ozaukee Circuit Court Judge Paul Malloy agreed with WILL, and the state Department of Justice appealed on behalf of the commission. That case is now pending in appellate courts.

The elections commission also deadlocked along party lines on whether to remove voters from lists before the Wisconsin Supreme Court weighs in.

But Monday, Malloy held the elections commission in contempt for not enforcing the 30-day limit. Malloy imposed a fine of $50 a day on the commission itself, and fine of $250 a day on the Democrats on the commission, who had voted to wait for appellate guidance.

WILL President Rick Esenberg says an appeal doesn’t excuse the commission from complying with the trial court’s order.

"You can request that the order be stayed, fancy word for suspended. But until it is, you have to follow it. It is the law," he said.

Attorney Jeff Mandell represents the SEIU— a union that’s trying to intervene in the appeal to prevent voter removal. He says the contempt order is both disappointing and surprising. He says the state Department of Justice promptly appealed Malloy’s original decision, and the higher courts haven’t weighed in on the stay.

"Given that, I think it's entirely reasonable that the commissioners want to wait and see what kind of instruction they receive on what the law is before they act," said Mandell.

The state Department of Justice appealed the contempt order Monday. Weeks ago, after the original appeal, WILL asked the Wisconsin Supreme Court to take up the case directly — and bypass the Court of Appeals. As a result, the Court of Appeals held off on deciding whether to prevent the removal of voter names pending appeal.

In a late-day turn of events Monday, the Wisconsin Supreme Court denied WILL’s request that it take up the case. That means the Court of Appeals in Madison could soon decide whether to block both the name removal and the holding of election commissioners in contempt while they decide the appeal.

Meanwhile, the Commission is scheduled to meet Tuesday to discuss the issue.

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