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WISCONSIN

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Voter Suppression Efforts in Wisconsin

MARCH 2020

• Wisconsin: On Friday, just a week-and-a-half before Wisconsin's April 7 elections, Democratic Gov. Tony Evers asked the Republican-run legislature to pass a bill sending every voter an absentee ballot. The proposal was immediately rejected, however: State Senate Majority Leader Scott Fitzgerald angrily accused Evers of "lying directly to Wisconsinites about this even being remotely possible."

• Wisconsin: Voting rights advocates have brought a new lawsuit asking a federal judge to bar Wisconsin officials from enforcing a state law that requires voters to have a witness sign their absentee ballots. Meanwhile, election clerks in Wisconsin's two largest counties, Milwaukee and Dane (home of Madison), have advised voters that they do not need to upload a copy of their ID when requesting an absentee ballot online, a move aimed at helping voters who lack the technological means to do so. Republicans have threatened to sue.

• Wisconsin: A federal judge granted a request by state and national Democrats on Friday to extend Wisconsin's online registration deadline from March 18 to March 30 ahead of the state's April 7 elections. The judge denied the plaintiffs' other requests but said he might reconsider the possibility of allowing absentee ballots to count so long as they're postmarked by Election Day, the deadline currently set by state law, even if they are received afterward.

• Wisconsin: The conservative group seeking to have Wisconsin to purge more than 200,000 voter registrations has asked the state Supreme Court to expedite its appeal after the state Court of Appeals ruled against it last month. In January, the plaintiffs had sought an expedited review by the high court, but the justices rejected the request in a 3-3 deadlock despite the court's 5-2 conservative majority.

That unexpected ruling came about because one conservative justice, Brian Hagedorn, sided with the court's two progressives, while Justice Dan Kelly, another conservative, recused himself because his seat is up for election on April 7. However, Kelly now says he could change his mind and participate in the case if it stretches out past the election. But even if Kelly loses, his successor wouldn’t take office until early August, meaning his participation could determine the outcome.

• Wisconsin: In a decision issued this week, the Wisconsin Court of Appeals has overturned a lower court ruling that had ordered the state's bipartisan Elections Commission to purge more than 200,000 voter registrations and found the Democratic commissioners in contempt for refusing to carry out the purge while their appeal was pending. However, this success could be short-lived.

At issue in this litigation is a GOP-backed law that requires voters to be removed from the rolls if anyone suspected of moving fails to respond within 30 days to a single mailing. Opponents have argued that the mailing was inadequate and that new notices should be sent to instruct those voters how to stay registered.

Last month, the appeals court temporarily blocked the lower court's decision. However, the conservative group bringing the case is appealing to the state Supreme Court, whose conservative majority will likely be sympathetic to their case.

Meanwhile, the Milwaukee Journal-Sentinel has conducted an analysis of the voters who would be affected and found that most of them actually have voted in recent elections. The report found that 72% of them had cast ballots in the 2016 presidential election, 89% in at least one election since 2006, and 31% in all three presidential races since 2008.

FEBRUARY 2020

MADISON - State Supreme Court Justice Daniel Kelly will face Dane County Circuit Judge Jill Karofsky in the April election for a 10-year term on Wisconsin's highest court, voters decided Tuesday. The race now pits a conservative against a liberal in a one-on-one contest. If Kelly wins the April 7 election, conservatives will keep their 5-2 majority. If Karofsky wins, the conservative majority will shrink to 4-3.

JANUARY 2020

• Wisconsin: As expected, the conservative group trying to require Wisconsin to purge 200,000 voter registrations has appealed a recent Court of Appeals decision to the state Supreme Court. The plaintiffs are seeking to overturn the appellate court's ruling that had temporarily blocked a lower court order to initiate the purge while the appeals process remains ongoing. The high court has a 5-2 conservative majority, but one of the conservatives recused himself and another sided with the court's two liberals earlier this month after the plaintiffs asked the justices to fast-track the case, leading to a 3-3 deadlock that resulted in a denial of the request to expedite the matter.

Wisconsin: A trio of rulings from three separate Wisconsin courts on Monday and Tuesday has resulted, for now, in a halt to a conservative group's effort to require the state to remove 209,000 voter registrations from the rolls.

On Monday, a lower court judge, who had previously ordered the purge to go forward, held Democratic election officials in contempt for not proceeding with the removal. These officials, who'd asked the judge, Daniel Malloy, to issue a stay while they appeal, pointed out that Malloy's order had not specified a deadline by which they were obligated to act.

Later that same day, the state Supreme Court declined to expedite an appeal requested by the plaintiff, a conservative organization called the Wisconsin Institute for Law and Liberty. WILL had hoped that the Supreme Court, which is dominated by right-wing jurists, would give it a friendly reception, one but conservative justice who's up for re-election this year recused himself and another sided with the court's two liberals in declining to fast-track the case. That resulted in a 3-3 tie, meaning the plaintiff's request was rejected.

Finally, on Tuesday, the state's intermediate Court of Appeals stayed Malloy's decisions: both his order directing the purge to proceed and his contempt ruling. That amounted to a victory for voting rights advocates, who, if they cannot halt the purge, at least want to delay it until after November's elections.

The win is only temporary, though: The state Supreme Court's refusal to expedite the case does not guarantee that the court will stop the purge if the case eventually reaches them. A separate federal lawsuit opposing the purge remains ongoing.

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Reversing a lower court decision, the Wisconsin Court of Appeals has paused the planned purge of over 200,000 voters. A three judge panel issued a stay of the circuit court’s order pending further review. Tuesday’s decision also overturned a contempt order from an Ozuakee County judge finding the Wisconsin Election Commission and the Democratic commissioners did not comply with his earlier order to remove the voters.

Split along party lines, the election commission was unable to come to a resolution Tuesday morning about how to proceed after the Court of Appeals’ ruling. Raising concerns about “clean” voter rolls, Republican commissioners have proposed sending a new round of letters to address due process concerns with the initial “movers mailing,” which gave voters at potentially new addresses 30 days to respond or be purged from the rolls. Meanwhile, Democratic commissioners have argued caution in how to proceed to avoid voter confusion.

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Wisconsin: The Wisconsin Court of Appeals has for now declined to intervene in a lawsuit that seeks to require the state to purge roughly 200,000 voter registrations. A lower court recently ordered the state's bipartisan Elections Commission to quickly proceed with the purge despite the commissioners' desire to wait until after the November elections, and the commission had asked the appeals court to stay the lower court's ruling.

Meanwhile, the right-wing group bringing this lawsuit has asked the conservative-dominated state Supreme Court to take up the case, which it hasn't yet decided to do. Democratic state Attorney General Josh Kaul has asked the high court to either compel the appeals court to act on the defendants' request for a stay or to issue one of its own while the case remains ongoing.

• Wisconsin: Amid ongoing litigation over a right-wing group's effort to require Wisconsin to purge roughly 200,000 voter registrations, the state's bipartisan Elections Commission has deadlocked along party lines and will keep those voters on the rolls for now.

This outcome follows a lower court ordering the purge to proceed, but the commission is currently appealing to the state Court of Appeals, while the plaintiffs are asking the conservative-dominated state Supreme Court to take up the case. Expecting a hostile reception in the state courts, the League of Women Voters, a good government group, filed a separate lawsuit last month in federal court to keep the affected voters on the rolls.

At issue in this litigation is a GOP-backed law that requires voter registrations to be purged if voters suspected of moving fail to respond within 30 days to a single mailing. The Elections Commission wants to hold off until 2021 to remove these voters to avoid confusion in this year's elections, but the conservative plaintiffs want the purge to happen swiftly. Opponents have argued that the single mailing sent out to at-risk voters was inadequate and that new notices should be sent to instruct those voters how to stay registered.

DECEMBER 2019

• Wisconsin: On Friday, a state court heard a conservative group's lawsuit seeking to purge up to 234,000 voter registrations. The plaintiffs claim these voters should be removed because they were flagged as potentially having moved away because they didn't respond to an October mailing within 30 days. However, the bipartisan state elections commission argued the state should wait until April 2021—after the 2020 elections—before removing anyone, citing confusion after a similar purge in 2017.

Wisconsin allows same-day voter registration, so wrongly purging eligible voters who haven't moved would not be quite the catastrophe it would be in many other states, but it would still cause major problems. Re-registering on Election Day requires a photo ID and proof of address, which unsuspecting voters who've been deleted from the rolls may not have with them when they show up at their polling place.

And even if voters do have all the necessary documents, re-registration consumes extra time and could lead to longer lines. These twin issues could ultimately deter some voters from casting a ballot, including those who aren't subject to the purge but are affected by longer waits. Unsurprisingly, analyses by the Milwaukee Journal Sentinel and the University of Wisconsin indicate that those slated to be removed are disproportionately Democratic.

Wisconsin's Supreme Court has a 5-2 majority of conservative hardliners, so if the case gets that far, there's a strong risk that the plaintiffs will prevail.