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Wisconsin Appeals Court Stays Voter Purge Ruling

Decision Means More Than 200K Names Will Remain On Voter Rolls For Now

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a primary election voter casts a provisional ballot
In this March 15, 2016 photo, a primary election voter casts a provisional ballot at a polling place in Westerville, Ohio. Matt Rourke/AP Photo

A Wisconsin appeals court has granted a stay of a ruling that could have immediately purged more than 200,000 voters from Wisconsin’s registration list.

The order from the District 4 Court of Appeals came after a flurry of action Monday that saw three Democratic members of the Wisconsin Elections Commission held in contempt and the Wisconsin Supreme Court decline to hear an immediate appeal.

The appeals court issued two stay orders Tuesday, one temporarily halting the December ruling by Ozaukee County Judge Paul Malloy to purge people from Wisconsin’s voter list, and the other temporarily blocking Malloy’s Monday ruling that three members of the Elections Commission be held in contempt.

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The cumulative effect of the rulings is that, at least for the time being, hundreds of thousands of names will remain on Wisconsin’s voter rolls and members of the Elections Commission won’t be fined.

The Court of Appeals issued its stay orders Tuesday morning as members of the Elections Commission were meeting in closed session to discuss the case.

The three-judge panel on the Court of Appeals had previously declined to issue a stay, citing a separate, direct appeal that was pending before the Wisconsin Supreme Court.

That changed after the state Supreme Court ruled Monday evening it would not hear the appeal directly, issuing a rare 3-3 decision that fractured the court’s conservative majority.

The appeals court referenced the higher court’s ruling and the Elections Commission’s meeting in its brief order Tuesday.

“Our reasoning will be set forth in greater detail in a separate order to follow at a later date,” read the order from appellate Judges Michael Fitzpatrick, JoAnne Kloppenburg and Jennifer Nashold. Fitzpatrick wrote separately to stay the contempt ruling.

At issue in the case are more than 200,000 voters who were flagged as having potentially moved by a multi-state system known as the Electronic Registration Information Center, or ERIC. ERIC is a nonprofit, multi-state system that identifies people who may have moved after they file paperwork with another government agency, like a state department of motor vehicles.

The Elections Commission sent mail to more than 232,000 voters in October alerting them they had been identified as potentially living at a new address. But under the commission’s original plan, no voter would have been automatically removed from the state’s registration rolls until 2021.

A lawsuit filed by the conservative Wisconsin Institute for Law and Liberty (WILL) challenged that move, arguing that state law requires that voters’ names be purged 30 days after they’re notified.

On Dec. 13, Malloy, the Ozaukee County judge, agreed, ordering the state to purge the names from its voter list immediately. But the Elections Commission, which is split evenly between Republicans and Democrats, deadlocked twice on how to address Malloy’s ruling.

That brought the case back to Malloy’s courtroom Monday where he found the Elections Commission’s Democratic members in contempt of court, fining each of them $250 per day in addition to a $50 daily fine on the Elections Commission. Malloy did not fine Republican commissioners, who had voted to enforce his ruling.

Both of his rulings are now temporarily on hold, and in the hands of the District 4 Court of Appeals, based in Madison.

Commissioners met for about an hour in closed session Tuesday to discuss the latest developments before returning to debate the issue in public.

Republican commissioners offered a motion that would have sent a new letter to potential movers on May 15, and removing people who did not respond 30 days later.

“We can still do it before the fall election,” said Republican Elections Commission Chair Dean Knudson, a former GOP lawmaker.

“I acknowledge that we’re doing this on the fly, but events have unfolded on the fly over the last 24 hours,” Knudson added later.

Democrats objected to the proposal, saying it flew in the face of the court stay handed down Tuesday.

“Isn’t it a poke in the eye?” asked Democratic Commissioner Mark Thomsen.

Democrats also argued there was no time to initiate a new mailing given all the elections scheduled for Wisconsin in February, April, August and November, in addition to a May special election for the 7th Congressional District.

The motion failed on a 3-3 vote, with Republicans in favor and Democrats against.

In addition to the state lawsuit, the League of Women Voters of Wisconsin has filed a separate lawsuit in federal court.

Wisconsin’s voter purge fight is being watched closely because of the state’s potentially pivotal role in the 2020 presidential election and its history of razor-thin margins.

President Donald Trump won Wisconsin by fewer than 23,000 votes in the 2016 election. The 2018 governor’s race and 2019 Supreme Court race were also decided by about a percentage point.

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