PORT WASHINGTON, Wis. – A Wisconsin judge on Monday found the state’s bipartisan elections commission to be in contempt and ordered it to immediately begin removing up to 209,000 names from the state’s voter rolls or face fines for each day it doesn’t.
Hours later, a divided Wisconsin Supreme Court declined a request from a conservative law firm to immediately hear the case, meaning that the legal battle will now shift to a lower state appeals court and likely not be resolved before the November presidential election.
The Supreme Court’s decision not to get involved now was a win for liberals, who will attempt to persuade a lower appeals court to put the original ruling on hold while the legal fight continues. The appeals court had refused to act while the Supreme Court was considering what to do.
The case is being closely watched, as Wisconsin is a battleground state that President Donald Trump won by fewer than 23,000 votes in 2016. Democrats are fighting the lawsuit, saying the purge would unfairly affect their voters. Republicans say they merely want to ensure that people who have moved are not able to vote from their old addresses.
The conservative-controlled Supreme Court deadlocked 3-3 on whether to take the case, which would have resulted in a quicker resolution. Newly elected conservative Justice Brian Hagedorn sided with two liberal justices in declining to immediately hear the case. The deadlock was possible because conservative Justice Dan Kelly, who is up for election in April, recused himself given that voters at risk of being removed would be casting ballots in his race.
By not taking the case now, “this court denies justice to the people of Wisconsin who deserve a prompt resolution of a dispute that affects important statewide and national elections this year,” the three dissenting conservative justices wrote.
They said the court was disregarding its duty by not taking the case now, especially with elections looming in a month.
“The case is unquestionably worthy of our prompt attention,” the justices wrote.
Wisconsin Elections Commission spokesman Reid Magney had no comment. Rick Esenberg, president of the conservative law firm the Wisconsin Institute for Law and Liberty, which brought the original lawsuit, said the decision not to take the case now “tells us little” about how the court may rule later.
There are a number of elections coming soon, including a February primary for Kelly’s Supreme Court seat and a host of local offices, followed by the April general election which is also the presidential primary.
Those bringing the lawsuit argue 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 October indicating they may have moved.
The commission wanted to wait until after the November 2020 presidential election before removing anyone because of inaccuracies with a previous round of data identifying voters who had potentially moved. Even if a voter has their registration deactivated, they can register again later or on Election Day when they show up at the polls, assuming they have the required documentation.
Ozaukee County Circuit Judge Paul Malloy last month sided with conservatives who filed the lawsuit and ordered that the voters have their registrations deactivated. When the elections commission didn’t immediately act to remove the voters, Malloy on Monday found it and three Democratic commissioners who voted against moving ahead with the purge in contempt.
“I cannot be clearer on this. They need to follow the order,” Malloy said. He was appointed to the bench in 2002 by then-Gov. Scott McCallum, a Republican, and he has won election three times since then.
The commissioners each face a $250 fine for every day they don’t comply. The commission as a whole faces $50 fines every day the purge doesn’t happen. Three Republican commissioners who pushed for proceeding with deactivating the voters would face no penalties.
The commission’s next meeting is Tuesday, hours before Trump was due to hold a rally in Milwaukee.
Ann Jacobs, one of the three Democratic commissioners, told the Milwaukee Journal Sentinel that she believes the judge’s initial findings were incorrect and that she does not want to begin taking people off the rolls.
The affected voters come more heavily from Democratic areas of Wisconsin, including Milwaukee and cities with college campuses. Democrats fear forcing voters whose registration was nullified to re-register would create a burden on them and hurt turnout. Republicans argue that removing the voters would ensure that the rolls are not full of people who shouldn’t be voting.
The League of Women Voters of Wisconsin also filed a federal lawsuit to stop the purge.
Dozens of people – some with tape over their mouths – rallied outside the courthouse before Monday’s hearing to protest the voter registration deactivation. Organizers said the purge would unfairly affect voters of color. The Rev. Greg Lewis, who heads the get-out-the-vote group Souls to the Polls Milwaukee, said he worried that the legal fight would lead to confusion that causes some people to give up on trying to vote, the Milwaukee Journal Sentinel reported.
“This is not checkers. It’s chess, and the people who are doing this understand that the frustration will cause a lot of people not to even want to vote,” he said.
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