MADISON – The state Supreme Court agreed to take a second swing at resolving a lawsuit over who should be on Wisconsin’s voter rolls Monday, six months after deadlocking on the case.
The case comes to the high court five months before the presidential election in one of the country’s most crucial swing states, but it remained unclear Monday whether the court would rule before the election.
The case will determine whether about 129,000 voters whose addresses are in doubt can stay on the voter rolls.
If voters are kicked off the rolls, they will be able to re-register online, by mail, in their clerks’ offices or at the polls on election day. While registration is easy in Wisconsin compared to some states, voting rights advocates contend it will be more difficult this year because the coronavirus pandemic is keeping many people in their homes.
Both sides are watching the case closely because Donald Trump won Wisconsin’s presidential election by fewer than 23,000 votes in 2016.
The justices set a briefing schedule that will last up to 60 days. By then, conservative Justice Daniel Kelly will have to step down from the court because he lost the April election to liberal Dane County Judge Jill Karofsky. She will be sworn in on Aug. 1.
Kelly declined to participate in the case last year because he was on the ballot this spring. Conservative Justice Brian Hagedorn joined the two liberals on the court in December and the justices split 3-3 on whether to take the case.
That left it to an appeals court to decide the case. In February the appeals court unanimously ruled the voters did not have to come off the rolls.
The conservatives bringing the lawsuit asked the high court to review that decision and the justices — with Kelly now participating — decided they would.
But in a separate order, the justices declined to immediately take voters off the rolls. Kelly did not participate in that decision and conservative Justice Rebecca Bradley dissented, arguing that the high court had been “idle” and had “neglected its institutional responsibility” by not acting swiftly.
“Elections are the foundation of American government and their integrity is of such monumental importance that any threat to their validity should trigger not only our concern but our prompt action,” Bradley wrote.
Fate of about 129,000 voters in play
The state Elections Commission sent letters to about 232,000 voters in October saying it believed they had moved and asked them to update their voter registrations. Three suburban Milwaukee men represented by the conservative Wisconsin Institute for Law & Liberty 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. He found the Democrats on the bipartisan commission in contempt of court for blocking attempts to remove them from the rolls as the commission pursued an appeal.
The appeals court reversed the decision and threw out the contempt finding. The appeals judges determined the law in question over when to take voters off the rolls applies to local election officials, not the state commission.
Since the case began, more than half of the voters who were went sent the mailing have had their registration status resolved. About 4,700 said they had not moved, about 57,000 re-registered at a new address and about 42,000 were dropped from the rolls for a variety of reasons, such as because their moves were confirmed, they asked to have their registration deactivated or they were convicted of a felony.
That leaves a little over 129,000 voters on the list at the heart of the lawsuit.
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.
Timing of case uncertain
While Kelly stepped aside from the case when the court first considered it, he signaled before the election that he would rejoin it if it came back to the justices After the election, he decided to participate in the case because he found there was no reason for him to stay out of it under Wisconsin’s ethics code for judges.
But whether he will still be on the court by the time a decision is reached is unclear.
Briefing in the case won’t be complete until sometime between the end of June and the end of July. The justices did not say whether they planned to hear arguments in the case, as they typically do.
Kelly’s term ends on July 31. Normally, the court takes a break in July and August.
If the court acted quickly, its ruling could affect the Aug. 11 primary as well as the Nov. 3 general election. If the court decides to hear arguments in the fall, it’s unclear when it might issue a ruling.
Contact Patrick Marley at email@example.com. Follow him on Twitter at @patrickdmarley.
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