Wisconsin Elections Commission deadlocks, keeps voters on the rolls for now
Patrick MarleyMADISON - The Wisconsin Elections Commission deadlocked Monday over whether to remove the voter registrations of more than 200,000 people in response to a judge's order.
The commission's inability to reach a consensus means the voters will stay on the rolls for at least the time being. An appeal in the case is ongoing and the commission faces a separate lawsuit that is trying to make sure people are not pulled from the rolls.
The three Republicans on the commission sought to take many of them off the rolls, but they were blocked by the three Democrats on the commission.
It was the second time in as many weeks that the commission broke down along party lines over the lawsuit, which has drawn national attention because of Wisconsin’s top-tier status in the 2020 presidential race.
Monday's commission meeting came as election officials provided new estimates that suggested a smaller number of voters than originally believed — about 144,000 — could be at risk of being taken off the rolls.
The commission in October sent letters to more than 230,000 voters who it believes may have moved because they provided new addresses to the post office, state Division of Motor Vehicles or other government agencies.
The commission asked the voters to update their voter registrations or confirm they were still at the same address. At the time, it planned to remove people from the voter rolls in 2021 if they didn't act.
Three voters with the help of the conservative Wisconsin Institute for Law & Liberty sued, arguing the commission needed to remove people from the rolls much sooner.
Ozaukee County Circuit Judge Paul Malloy agreed this month, finding that state law required the commission to take people off the rolls 30 days after telling them it believed they had moved. He ordered the commission to take the voters off the rolls, but the commission has not done so as it pursues an appeal.
The commission, represented by Democratic Attorney General Josh Kaul, asked the Madison-based District 4 Court of Appeals to review the case. Those who brought the lawsuit have asked the state Supreme Court to take up the case before the appeals court issues a decision.
Days after Malloy issued his decision, the state's elections commissioners failed to agree on what to do in response to his decision. Monday offered a repeat of that situation, with the commission again splitting 3-3 on how to proceed.
"It is astonishing that, once again, the Wisconsin Elections Commission could not agree to follow a straightforward court order," said a statement from Rick Esenberg, the lead lawyer on the case. "Court orders are not suggestions. They are not suspended because the losing party has appealed. They are to be followed."
Commissioners usually agree
GOP lawmakers established the commission with a 2015 law that dissolved its predecessor, the Government Accountability Board, because they believed a wide-ranging investigation of then-Gov. Scott Walker’s campaign showed a bias against Republicans.
Critics at the time contended the commission would routinely break down along party lines. But over the years the commissioners have defied those concerns and shown themselves able to reach agreements on most issues, often unanimously.
The new lawsuit is testing their ability to get along.
"I'm not overly concerned that we're like grid-locked," said Commissioner Mark Thomsen, a Democrat. "I mean, this is one issue, one interpretation of one statute, and on all the (election) security measures we've been pretty in step. I still believe the commission wants to maintain the integrity of elections and we just have a dispute right now over who should be on the poll lists."
But Robert Spindell, a Republican and the newest member of the commission, questioned what the future may hold for the panel.
"Among maybe half the population, or a little bit less if that’s the Republicans, do not have confidence in the Wisconsin Elections Commission because ... you’re leaving 200,000 people that perhaps should not be on the voting rolls on the voting rolls," Spindell told his colleagues. "I think that 'everything is six-zero' (for commission votes) is not necessarily true anymore."
Before Spindell joined the commission in October, he criticized the decision to keep people who were believed to have moved on the rolls and encouraged a lawsuit over the issue.
In June, Spindell sent an email to other Republicans saying he was "extremely disappointed and shocked" that the Republicans on the commission at the time agreed with Democrats on the commission on how to handle the voter rolls.
"(I) sincerely hope they will soon learn they do not have to vote along with the three Democratic Appointed Members all of the time or must agree with the Staff's Legal opinions all of the time, especially given how close the 2020 Presidential Election is likely to be," Spindell wrote, according to a copy of the email obtained by the Milwaukee Journal Sentinel.
Some voters moved within same city
Election officials initially said they sent letters to about 234,000 voters but recently determined the letters were sent to about 232,500 voters.
The state law at the heart of the legal fight deals with voters who move from one Wisconsin community to another one. But as many as 88,000 of the voters who were sent letters are believed to have moved within the same municipality, said Meagan Wolfe, the executive director of the commission.
Those voters may be at less risk of coming off the rolls because they did not move to a new community.
Wolfe stressed that the estimate of 88,000 voters is rough because mailing addresses do not always correspond to the municipality where someone lives. For instance, someone who lives in the small Town of Burke in Dane County may have a Madison mailing address.
If the 88,000 estimate is accurate, then the number of voters most at risk of coming off the rolls would be about 144,000, rather than more than 230,000.
Of the letters that were mailed, about 61,000 were returned as undeliverable. About 2,500 recipients have said they haven't moved and about 169,000 have not responded to the letters.
Elections officials sent the letters based on information compiled by the Electronic Registration Information Center, or ERIC, a coalition of 28 states and Washington, D.C., that tries to keep voter rolls as accurate as possible. ERIC checks government databases to develop evidence that people have moved, but in some cases voters are wrongly flagged, such as when a voter who has not moved registers a vehicle at a business address.
Voters who are removed from the voter rolls, whether correctly or mistakenly, can regain the ability to cast ballots by re-registering online, at their clerk's office or at the polls on election day.
In addition to the lawsuit in state court, there is one in federal court brought by the liberal League of Women Voters, which wants to keep people on the rolls. With two lawsuits, there is a possibility the state and federal courts could issue contradictory decisions.