The judge sided with three voters represented by a conservative law firm who argued the state elections commission should have immediately deactivated any of the roughly 234,000 voters who didn't respond to an October mailing within 30 days. The voters were flagged as having potentially moved.
Ozaukee County Judge Paul Malloy denied a request by elections commission attorneys to put his decision on hold. He ordered the state Elections Commission to follow the law requiring voters who didn't respond to be deactivated.
“I can’t tell them how to do that, they’re going to have to figure that out," Malloy said of the commission deactivating the voters. The judge's ruling comes in the early stages of the case and is expected to be immediately appealed. It's likely to ultimately go to the Wisconsin Supreme Court, which is controlled 5-2 by conservatives.
The case is important for both sides ahead of the 2020 presidential race in narrowly divided Wisconsin, which President Donald Trump won by fewer than 23,000 votes in 2016. Liberals fear the voters who could be purged are more likely to be Democrats. Republicans argue allowing them to remain on the rolls increases the risk of voter fraud.
The state elections commission, which has an equal number of Republicans and Democrats, is fighting the lawsuit. It argues that the law gives it the power to decide how to manage the voter registration list. It wants to wait until after the April 2021 election before removing anyone, citing concerns that everyone identified may not have moved and removing them would create confusion.
The commission also argued that leaving a registered voter on the polls, even if they have moved, does not mean they will actually commit fraud by voting at their old address. The elections commission decided to wait longer than 30 days to deactivate voters because of problems in 2017 after about 343,000 voters were flagged as potential movers. More than 300,000 people who did not respond were deactivated, leading to confusion, anger and complaints. Wisconsin allows same-day voter registration, but it requires photo ID and proof of address.
The judge said Wisconsin law clearly required the elections commission to deactivate voters who didn't respond to the mailing within 30 days. The commission had no basis to set a different time frame, he said.
“I don’t want to see anybody deactivated, but I don’t write the legislation," Malloy said. “If you don’t like it, then I guess you have to go back to the Legislature. They didn’t do that." Karla Keckhaver, an assistant attorney general defending the commission, argued that not putting the ruling on hold pending appeal would create “irreparable harm.”
“This would create chaos to do this now," she said, referring to upcoming elections in February. Rick Esenberg, attorney for the Wisconsin Institute for Law and Liberty that brought the case, disagreed, noting that affected voters could re-register online before an election or at the polls.
Some of the highest percentages of voters who could be tossed would be in Wisconsin’s two largest cities and areas with college campuses, epicenters of Democratic support, a Milwaukee Journal Sentinel analysis found. Milwaukee and Madison, the largest cities and base of Democratic support, account for 23% of the letters that were sent to voters who may have moved. More than half of the letters went to voters in municipalities where Democrat Hillary Clinton defeated Trump in 2016, the analysis found.
As of Dec. 5, only about 16,500 of those who received the mailing had registered at their new address. More than 170,000 hadn't responded, and the postal service was unable to deliver notifications to nearly 60,000 voters.
While the lawsuit is pending, the commission has asked the Republican-controlled Legislature to provide clarity by passing a law or empowering the commission to create procedures on how to deal with voters who have moved.
Wisconsin has about 3.3 million registered voters out of about 4.5 million people of voting age. Next year's presidential race isn't the only high-stakes election that could be affected by the registration lawsuit. Wisconsin has a February primary for a seat on the highly partisan state Supreme Court. The state's presidential primary is in April.
Follow Scott Bauer on Twitter: https://twitter.com/sbauerAP