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Following Election Loss, Justice Daniel Kelly Might Hear Voter Purge Case

Kelly Previously Recused Himself

Daniel Kelly
Gov. Tony Evers gives his first State of the State address in Madison, Wisconsin, at the state Capitol building on Jan. 22, 2019. Here, Wisconsin Supreme Court Justice Daniel Kelly is seen before the start of the speech. Emily Hamer/Wisconsin Center for Investigative Journalism

With his unsuccessful election now behind him, state Supreme Court Justice Daniel Kelly indicated Wednesday he may lift his recusal in a case that could purge up to 200,000 names from Wisconsin’s voter list.

Kelly, who lost his bid for a 10-year term on the court to Judge Jill Karofsky, had initially recused himself from the case brought by the conservative Wisconsin Institute for Law and Liberty (WILL) because it could have affected his own election.

But in a brief order issued Wednesday, he told parties to the case that those circumstances had changed.

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“The 2020 spring general election is now complete, so it appears the reason for my recusal from considering any aspect of this matter no longer obtains,” Kelly wrote. “I issue this order to give the parties an opportunity to state their position on whether I should recuse myself from considering the pending petition for review.”

Kelly is part of the current 5-2 conservative majority on the Wisconsin Supreme Court, where he’ll continue to serve until his term ends July 31. Once Karofsky is sworn in, the conservative majority will be trimmed to 4-3.

Kelly’s recusal from the voter purge case had tangible consequences in December, when the court deadlocked 3-3 on whether to hear the case on an expedited appeal. In that ruling, conservative Justice Brian Hagedorn joined liberal justices to prevent the court from taking the case immediately.

The case stems from a lawsuit brought last year by WILL. At issue are more than 200,000 people who were flagged as having potentially moved by a multi-state system that compares registration data to records from other government agencies, like state departments of motor vehicles.

The Wisconsin Elections Commission originally sent a piece of mail to those voters alerting them they had been identified by the system, but under the state’s original plan, none of the names would be automatically purged until 2021.

WILL argued that state law did not give the Elections Commission discretion to wait on purging its voter list. Ozaukee County Judge Paul Malloy agreed and ordered the names removed from Wisconsin’s voter list immediately. When the Wisconsin Elections Commission did not immediately comply, Malloy tried to hold some of its members in contempt of court.

A state appeals court intervened, blocking Malloy’s initial ruling and his contempt order in January and ruling in February the state had no “positive and plain” duty to deactivate voters.

WILL appealed that ruling to the Wisconsin Supreme Court, where Kelly might join other justices to hear the case this time around.

Kelly gave parties involved in the case until Wednesday, April 22 to weigh in on whether or not he should hear the case, but the ultimate decision rests with him.

Kelly was appointed to the Wisconsin Supreme Court by former Republican Gov. Scott Walker in 2016. He was the first incumbent to lose a Supreme Court election since 2008.

Kelly has a history with WILL, having served briefly on the group’s litigation advisory board about a decade ago. He said during his campaign that there was nothing wrong with him deciding cases for an organization he once advised.

“No, I don’t think so,” Kelly said in a March 11 interview with WPR. “Having been associated with an organization does not require that you forever afterwards recuse. It would be an awfully onerous requirement for the entire judicial system if that were true.”