After a whirlwind 24 hours in Wisconsin, an appeals court Tuesday blocked a lower judge’s decision ordering the state Elections Commission to immediately begin purging more than 200,000 voters from its rolls — a directive that would disproportionately impact Democratic-leaning minority voters, critics say.
In halting that ruling, the Madison court likely ensured the voters in question will remain registered for the November presidential election and other contests in the state. But even with the temporary stay, officials here worry that the confusion surrounding the breakneck developments in the case could become their own barrier to ballot access in the key swing state.
The ruling from judges Michael Fitzpatrick, JoAnn Kloppenburg, and Jennifer Nashold came a day after the state Supreme Court declined to get involved in the case for now, a win for the state and voting-rights groups who hoped to challenge Ozaukee County Circuit Judge Paul Malloy’s decision on Monday holding Julie Glancey, Mark Thomsen, Wisconsin election commissioner Ann Jacobs, and the Wisconsin Elections Commission in contempt for declining to carry out his original ruling — and directing the commission to immediately begin striking voters from the rolls.
“I am obviously pleased,” Jacobs told Rolling Stone after the appeals court ruling. “But we can’t rest on this decision.”
The conservative group that brought the case to Malloy, the Wisconsin Institute for Law and Liberty (WILL), had hoped the Wisconsin Supreme Court would step in to ensure the judge’s order was carried out before a slate of important elections, including April’s Democratic primary and November’s presidential election. But the court deadlocked 3-3 Monday on whether or not to take the case, with one conservative justice siding with the liberal minority, allowing the Madison appeals court to settle the matter for now.
With that temporary stay, Jacobs said, voters are likely to remain on the rolls at least through the Wisconsin’s primaries for local offices next month, April’s elections for a Wisconsin Supreme Court seat and the Democratic presidential primary, and the November presidential election, while the case goes through the appeals process. That’s significant, both for Wisconsin voters and for the 2020 presidential election; after all, Donald Trump bested Hillary Clinton in the Badger State by a mere 23,000 votes on the way to his shock victory in 2016 — thanks in part, perhaps, to low voter turnout in the state, particularly among black voters, in what critics have attributed to disenfranchisement efforts. Team Trump appears to view the continuation of those efforts as an important strategy this cycle; during an appearance in Madison last month, a top Trump re-election adviser suggested a concerted, ramped-up campaign to keep voter turnout low in Wisconsin and other battleground states. “Traditionally it’s always been Republicans suppressing votes in places,” Justin Clark, one of Trump’s top re-election advisers, said at a Wisconsin chapter meeting of the Republican National Lawyers Association in December. “That’s what you’re going to see in 2020. It’s going to be a much bigger program, a much more aggressive program, a much better-funded program.”
In the current Wisconsin case, WILL brought a lawsuit calling for the purge of about 200,000 people who had not responded to an October mailer from the Elections Commission regarding potential address changes; the voters, more than half of whom lived in districts Clinton carried in 2016, were flagged as having possibly moved by information collected by the Electronic Registration Information Center (ERIC), a multistate nonprofit aimed at maintaining voter roll accuracy. The conservative group argued that the voters must be purged ahead of the upcoming election to ensure clean registration lists. But critics have charged that the move was politically motivated to keep voters from the ballot box.
“It’s not about cleaning up the voter rolls,” Jacobs said. “It’s about denying peoples’ right to vote.”
Some damage might already have been done. According to Myrna Pérez, director of the Voting Rights and Elections Program at New York University’s Brennan Center for Justice, voter purges like the kind in question in Wisconsin right now have had an “alarming uptick” since 2008, with “private groups trying to bully or force election administrators to purge more voters.” That increasing prevalence could both force more voters from the rolls and result in other voters becoming “demoralized,” potentially keeping them from the ballot box. “This is going to further signal to some voters that the right to vote is a political football that is going to be manipulated and used by partisan activists,” Pérez told Rolling Stone.
According to Neil Albrecht, executive director of the Milwaukee Election Commission, the ERIC data at the center of the lawsuit is unreliable and being used as an excuse to prevent people from voting, particularly people of color and those in poverty, who already face barriers to the ballot. “It is becoming increasingly difficult, if not impossible, for many residents in this city to be able to register to vote and cast a ballot,” Albrecht said, noting that while Wisconsin residents can register to vote on Election Day, not all voters may have the documentation or ability to do so. “There’s a dangerous assumption being made about whether a person appearing at a polling place will have the capacity to reregister and still vote in the election,” Albrecht said. “There’s been no proven problem [with voter rolls]. But what we lose is so significant.”
WILL president Rick Esenberg vowed to fight the ruling in a statement Tuesday. “What is true yesterday is true today,” Esenberg said. “The Wisconsin Elections Commission isn’t following state law, and we look forward to making that case in the Court of Appeals.” But Jacobs appeared cautiously optimistic following Tuesday’s ruling, expressing confidence that the appeal would ultimately succeed while warning that voters in the state should be proactive about ensuring they are registered, getting to the polls, and helping others do the same.
For Anita Johnson, Wisconsin statewide coordinator with VoteRiders, a nonprofit voting rights organization, significant concerns remain even after the appeals ruling. “The confusion lingers on,” Johnson told Rolling Stone. “Voter suppression is live and kicking — anything that can be done to suppress people going to the polls, it will be done. We have to stay on our toes.”