Justice Daniel Kelly rejoins voter purge case after losing election

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MADISON – State Supreme Court Justice Daniel Kelly rejoined a lawsuit Wednesday over the state’s voter rolls after earlier keeping away from the case. 

Kelly recused himself from the case last year because he was on the April 7 ballot. The conservative justice lost the election to liberal Dane County Circuit Judge Jill Karofsky, but he will stay on the bench until the end of July, when his term ends. 

Before the election, Kelly signaled he was likely to rejoin the case after the election because little substantive work has been done on it. Days after the election results were announced, Kelly asked parties involved in the case to say what they thought he should do, and on Wednesday he issued an order saying he would participate in the case.

“Having fully considered the matter, I have concluded that, in light of the fact that this case cannot now affect any election in which I would be a candidate while the case is being decided, there is no ethical bar to my participation in the consideration of the petition for review or the merits of the case if the petition for review is granted,” he wrote in his order. 

His decision to participate in the case means the court won’t deadlock on it, as it did in December. Then, the justices split 3-3 on whether to take the case before an appeals court had reviewed it. 

The lawsuit is expected to determine whether tens of thousands of voters who are believed to have 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.

The state Elections Commission sent letters to more than 200,000 voters in October saying it believed they had moved and asked them to update their voter registrations. Conservatives sued, arguing state law required the commission to take them off the voter rolls if they hadn’t acted within 30 days. 

An Ozaukee County judge agreed the voters must come off the rolls, but an 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. 

Kelly is part of a 5-2 conservative majority on the court. That will slip to 4-3 when Karofsky is seated in August. 

Karofsky has accused Kelly of telegraphing to Republicans that he plans to side with them in the case — a claim Kelly has denied. 

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 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 rejoin cases after disqualifying themselves “is probably best avoided, but the state of the law is uncertain enough that I cannot say it is improper.”

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.

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