MADISON – Days after learning he was losing his seat on the state Supreme Court, Justice Daniel Kelly signaled he would participate in a case over who should remain on Wisconsin’s voter rolls after earlier stepping away from the lawsuit.
The case is expected to determine whether tens of thousands of voters who are suspected of having moved can stay on the state’s voter rolls. Both sides are watching the case closely because Donald Trump won Wisconsin’s presidential election by fewer than 23,000 votes in 2016.
Before last week’s election, Kelly said he would be inclined to re-join the case whether he won or lost his bid for a new term on the court.
On Wednesday, he made that clearer with a court order saying it appears he no longer has a conflict in the case. He asked those involved in the case to file briefs by next week on what they think he should do before he makes a final decision.
His involvement in the case could prove crucial. In December, he declined to be involved in the case and the remaining justices split 3-3 on whether to accept the case before an appeals court had ruled on it.
The deadlock meant the case could remain with the appeals court. That court in February ruled unanimously that the voters should remain on the voter rolls.
A new appeal puts the case back before the high court. The justices haven’t said yet whether they will take the case.
Kelly had stayed away from the case because it could have affected who was a registered voter for the April 7 election, when he was on the ballot. With that election over, the circumstances have changed, he wrote in Wednesday’s order.
“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,” he 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 and, potentially, the merits of these consolidated appeals, before I make a final decision on my participation.”
The order is in line with how Kelly talked about the case during the race.
“(If) there has been no substantive work done on the case by the Supreme Court, then I wouldn’t see any basis to continue to recuse (after the election),” he said in an interview with the Milwaukee Journal Sentinel last month.
Two national experts on judicial ethics last month said rejoining a case after stepping away from it would be unusual but not necessarily unwarranted.
Stephen Gillers, a professor at New York University School of Law, said judges can reverse a decision to stay out of a case if circumstances have been changed. Typically they do so only when asked by parties involved in the case, he said then.
Charles Geyh, a professor at Indiana University Maurer School of Law, said having judges re-join cases after disqualifying themselves “is probably best avoided, but the state of the law is uncertain enough that I cannot say it is improper.”
Kelly, who is part of the Supreme Court’s 5-2 majority, lost to liberal Dane County Circuit Judge Jill Karofsky, according to results released Monday. Kelly will remain on the court through July, and the voter rolls case is expected to be decided before then.
Before the election, Karofsky accused Kelly of telegraphing his intentions to Republicans about the voter rolls case, which was brought by the conservative Wisconsin Institute for Law & Liberty.
“(He’s) basically saying, ‘Look, I’ll be there for you (to Republicans) — get me across the finish line on April 7 and I’ll be there for you come November,'” she said last month. “It’s not surprising to me at all, and that is corruption in its purest form.”
On Thursday, Karofsky spokesman Sam Roecker said in a statement that voters “delivered a resounding message that they are sick of justices who ignore the law to vote in lockstep with their special interest friends. We hope that Justice Kelly has finally learned that lesson.”
Other conservatives on the court called Karofsky’s allegations of corruption out of line and based on no evidence. Kelly said last month that Karofsky was engaging in “projection” and accusing him of doing something she would do — tipping cases toward her political agenda.
The voter rolls case will determine how state election officials should treat more than 200,000 voters who it believes may have moved because they have submitted change-of-address forms to the post office, registered vehicles at new addresses or taken other steps that suggest they moved. Election officials have said most of those voters have likely moved but acknowledged in some cases the information they have is faulty.
The conservatives bringing the lawsuit argue state law requires the voters to be taken off the rolls 30 days after the state Elections Commission contacted them about whether they had moved.
An Ozaukee County judge agreed the voters must come off the rolls, but the appeals court reversed the decision, finding that the law in question applies to local election officials, not the state commission.
Voters can update their registration status by mail, in clerk’s offices, at the polls on election day or online at myvote.wi.gov. If voters are taken off the rolls, they will be allowed to re-register if they have proof of residence.
Judge Jill Karofsky thanks her supporters after winning the Wisconsin State Supreme court race over incumbent Justice Daniel Kelly. Milwaukee Journal Sentinel
Contact Patrick Marley at firstname.lastname@example.org. Follow him on Twitter at @patrickdmarley.
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