What You Need to Know: WILL’s Lawsuit Against the Wisconsin Elections Commission
Ozaukee County Circuit Court Judge Paul Malloy decided in favor of WILL on December 13 in a lawsuit against the Wisconsin Elections Commission (WEC). WILL filed a lawsuit on November 13, on behalf of three Wisconsin voters, after the Wisconsin Elections Commission ignored state law and adopted policies that allow voters who have moved to maintain active voter registrations at old addresses beyond 30 days.
What Does It Mean and Why Does it Matter?
The Wisconsin Elections Commission, in accordance with Judge Malloy’s December 17 court order, must follow state law and remove voter registrations from addresses that could not be confirmed within the 30 days as outlined in state law.
The legislature enacted policies to ensure election integrity and clean voter rolls. This decision ensures the law will be followed and Wisconsinites can have confidence in their elections.
Just as important, state agencies cannot ignore state law. This decision is a win for an accountable administrative state.
What Does the Law Say?
WEC ignored state law on how to handle the “movers.” Wisconsin participates with 28 other states in the Electronic Registration Information Center (ERIC). ERIC flags “movers” – individuals who report an official government transaction from an address different than their voter registration address – to state election agencies. State law provides specific direction to WEC on how to handle “movers.” Wis. Stat. s. 6.50(3) reads:
Upon receipt of reliable information that a registered elector has changed his or her residence to a location outside of the municipality, the municipal clerk or board of election commissioners shall notify the elector by mailing a notice by 1st class mail to the elector’s registration address stating the source of the information. . . . If the elector no longer resides in the municipality or fails to apply for continuation of registration within 30 days of the date the notice is mailed, the clerk or board of election commissioners shall change the elector’s registration from eligible to ineligible status.
In summary, when WEC receives reliable information that voters have moved, they are to:
- Send a notice to the mover at the address of their voter registration.
- A voter has 30 days to affirm whether they still live at the address.
- If the voter affirms they live at the address – by returning the postcard or completing a brief form online – nothing happens.
- If the voter takes no action for 30 days, WEC is to change the voter’s registration status from eligible to ineligible.
On June 11, 2019 the Wisconsin Elections Commission decided that changes in eligibility for a voter flagged as a “mover” will not occur for 12 to 24 months. WILL sued because WEC’s actions violate state law.
WEC failed to follow the rule-making process when adopting a new policy. First, WEC cannot make a rule that is inconsistent with a state statute. But even if WEC were to argue that the policy that it adopted was somehow consistent with the statute in question, WEC would still have to comply with the applicable rule-making process laid out in state law (sometimes referred to as Chapter 227). The rule-making process requires a state agency to publish a proposed rule, allow for public comment, and a formal adoption of the rule after a set period of time. WEC did none of that. WILL sued because WEC’s actions violate state law.
Will This Decision Disenfranchise Voters?
No. For the vast majority of the more than 200,000 voter registrations impacted by this decision, we have reason to believe that the ERIC data on movers is reliable (to the tune of 90-95% accuracy). That means those voter registrations are, in fact, located at old addresses and should come off the rolls.
For those who may find themselves on the ERIC list by mistake, WEC sends a postcard notifying them that they must take steps to confirm their voting address. If they fail to take those steps, Wisconsin has same-day voter registration and two full weeks of in-person absentee voting, meaning voters have ample opportunity to re-register and cast a ballot.
Is This a “Voter Purge?”
No. When Speaker of the House Nancy Pelosi claimed Judge Malloy’s decision would mean “more than 200,000 registered voters would be prohibited from voting,” the Milwaukee Journal Sentinel’s PolitiFact team labeled this comment “Pants on Fire.” PolitiFact called Pelosi’s claim a “major overstatement,” because “Everyone can re-register, even on Election Day.”
This is critical. No voter is being prevented from registering and no voters are being prevented from casting a ballot. This lawsuit would simply require the Wisconsin Elections Commission to follow state law and ensure that voters are casting ballots from the correct address and verifying those addresses when there is government data to suggest they may have moved.
Is This Lawsuit About Voters Who Move Within a Municipality?
No. At one point WEC staff suggested that as many as 88,000 of the 200,000+ voters who received the notices from WEC back in October were so-called intra-municipality voters, i.e., voters who moved from one address to another within the same municipality. WEC has never produced any data in the lawsuit or otherwise that would support this statement. But if it is true, it would be another substantial legal violation by WEC. Intra-municipality voters should never have received one of the October movers notices. Under state law they are treated differently. With respect to voters who move within a municipality, WEC is obligated to remove their registration from their original address and then automatically reregister them at their new address and alert them by mail that they have done so. If WEC, instead, included them in the October movers notices with the voters who moved within the state but outside of the municipality then WEC violated the rights of those voters.
Is This Lawsuit About Partisan Politics?
Much has been made in the press about the potential “impact” of WILL’s lawsuit and Judge Malloy’s decision. Because the ERIC list includes more voters in traditionally Democratic voting areas, this lawsuit has been cast as a partisan attempt at voter suppression.
This is wrong for two reasons. First, the success of our lawsuit depends on making the case (see above) that the Wisconsin Elections Commission violated state law. We make that case based on the law and the law only.
Second, those who claim to know the “impact” of this decision are mistaken. The only thing we know is that ERIC identified more than 200,000 voter registrations of individuals who may have moved. Those who claim to know the political views of those voters are not being honest. Further, for the decision to have any “impact” other than cleaning up the voter rolls, one would have to know, with certainty, that those whose registrations have been deactivated cannot, for some reason, re-register and cast a ballot from a current or future address.