In 5-2 ruling, the Wisconsin Supreme Court keeps thousands of voters on the rolls

Wisconsin Supreme Court Chief Justice Patience Roggensack, left, and Justice Brian Hagedorn, right.

MADISON – The Wisconsin Supreme Court ruled Friday that state election officials do not have to quickly take people off the voter rolls when they suspect they may have moved. 

The 5-2 ruling means the Wisconsin Elections Commission will not force tens of thousands of people off the rolls near a major election, such as the 2022 contest for governor and U.S. Senate.

From the outset, the case has been fraught with politics. Conservatives who brought the lawsuit said they wanted to make sure the state’s voter lists are accurate, while Democrats and election officials warned a change in state policy could result in some voters being bumped off the rolls when they shouldn’t be. 

The state law at the heart of the lawsuit over when to take voters off the rolls does not apply to the Elections Commission, the majority concluded. 

“There is no credible argument that it does,” Justice Brian Hagedorn wrote for the majority. 

Joining Hagedorn in the majority were conservative Chief Justice Patience Roggensack and liberal Justices Rebecca Dallet, Jill Karofsky and Ann Walsh Bradley.

In dissent were conservative Justices Rebecca Bradley and Annette Ziegler. (The Bradleys are not related.)

The ruling marks the latest instance of Hagedorn breaking with at least some conservatives and siding with liberals.

Hagedorn was elected with backing from Republicans in 2019 but has joined with liberals on some matters. He’s faced blowback from Republicans, though he may get some cover in the latest case because Roggensack signed onto the decision as well. 

The lawsuit over the voter rolls stretches back to 2019, when the bipartisan Elections Commission sent letters to about 232,000 voters who it believed might have moved. It asked them to register at a new address or confirm they had not moved.

Three suburban Milwaukee voters represented by the conservative Wisconsin Institute for Law & Liberty filed the case, arguing the state had to immediately take the voters off the rolls.

An Ozaukee County judge ruled in their favor, but an appeals court reversed the decision and found the voters should stay on the rolls.

Since the letters were sent, the list of voters has been whittled down to about 72,000. The rest have registered at a new address, said they didn’t move or come off the rolls for other reasons.

Of those who remain on the list, none voted in 2020, including November’s presidential election, according to a recent report from the Elections Commission.

Those 72,000 voters were scheduled to come off the rolls this spring. Meagan Wolfe, the commission’s director, said her agency will analyze the decision to determine how to treat those voters. 

The court’s ruling will affect how the commission acts in such matters in the future and could allow election officials to continue to take a year and a half to decide when to take voters off the rolls. 

The lawsuit centered on a state law that says voters should come off the rolls if they have not responded within 30 days to notifications that there is reliable information that they have moved.

Like the appeals court, the Supreme Court concluded that law applies to local clerks — not the state commission. Clear definitions in state law make it clear who is responsible for taking voters off the rolls, Hagedorn wrote for the majority.

The lead plaintiff’s “primary argument in this case is that the Commission is a ‘board of election commissioners’ under (state law). This argument disregards nearly every foundational principle of statutory interpretation,” Hagedorn wrote. 

The dissenting justices disagreed, writing that both state and local officials are responsible for clearing the rolls of voters who have moved. 

“The majority’s decision leaves the administration of Wisconsin’s election law in flux, at least with respect to ensuring the accuracy of the voter rolls,” Justice Rebecca Bradley wrote. 

Democratic Attorney General Josh Kaul, who argued the case before the justices in September, praised the ruling. 

“This decision is a clear win for Wisconsin voters,” he said in a statement.

Rick Esenberg, the president of the Wisconsin Institute for Law & Liberty, said he was disappointed with the decision and hoped the Legislature would change the law so movers could be quickly taken off the rolls in the future. 

“WILL remains committed to the rule of law and to a reasonable set of election rules that acknowledges that the right to vote involves both convenience and assurances of accuracy and integrity,” Esenberg said in a statement.

If the court had ruled the other way, thousands of voters would have routinely come off the rolls every two years when election officials believed they had moved.

Those voters would have been able to get back on the rolls quickly if they had proof of residence. Wisconsin allows residents to change their voter registration online, by mail, in clerks’ offices and at the polls on election days.

Another aspect of the case turned on the quality of the information election officials have about whether voters have moved.

The list of voters was compiled by the Electronic Registration Information Center, a consortium that helps 30 states and Washington, D.C., maintain accurate voter rolls. 

It uses change-of-address forms submitted to the U.S. Postal Service and vehicle registrations in Wisconsin and other states. Officials have acknowledged the system they use sometimes wrongly flags people as having moved and have said the lists should not be treated as the final word on whether voters have moved.

In some cases, people are incorrectly labeled as moving when they have registered a vehicle at a business address or relative’s home.

About 17,000 people who were on the state’s initial list told election officials they had not moved. Some of those voters told the Milwaukee Journal Sentinel this year they were stunned to find they had been labeled as having moved. 

Officials have said their list of voters who moved is largely accurate but they don’t know exactly how many errors it contains. 

The case is the latest in which Hagedorn agreed with the liberal justices. 

In December, Hagedorn and the liberal justices issued a string of decisions that upheld Joe Biden’s narrow win over Donald Trump in Wisconsin’s presidential election. Also last year, Hagedorn joined them to keep the Green Party’s presidential ticket off the ballot — something Republicans wanted because they thought it would drain away support for Biden.

In May, Hagedorn joined the liberals in dissent in saying the conservative majority was wrong to strike down the stay-at-home order Democratic Gov. Tony Evers’ administration had issued to fight the spread of COVID-19.

Last week, Hagedorn was on the side of other conservatives in finding Evers no longer has the power to issue mask requirements and other health orders.

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