Wisconsin is one of a handful of states that will determine the winner of the 2020 presidential election. In 2016, when nearly 3 million Wisconsinites voted, Trump defeated Clinton by less than 23,000 votes. In 2018, Democrat Tony Evers defeated Wisconsin's incumbent Republican Governor, by less than 30,000 votes.
But on Friday, a Wisconsin judge issued a ruling that could provide Republicans with a decisive advantage in 2020.
In October, the Wisconsin Election Commission sent a letter to "234,000 voters who it believes may have moved." The Commission, which is comprised of three Republicans and three Democrats, unanimously decided that voters who did not respond to the letter would not be removed from the voting rolls until 2021. This is because of systemic problems with a similar letter sent in 2017, which resulted in tens of thousands of eligible voters being improperly purged.
But the Wisconsin Election Commission was sued last month by the Wisconsin Institute for Law and Liberty (WILL). Lawyers for WILL argued that, under state law, the election commission was required to purge anyone who did not reply to the letter within the 30 days.
On Friday, Wisconsin Judge Paul V. Malloy ruled in favor of WILL. That means that, if Malloy's decision his upheld on appeal, more than 200,000 people could be purged from Wisconsin's voting rolls. As of December 5, "about 2,300 recipients of the letters said they continued to live at their address and about 16,500 had registered to vote at new addresses." Sixty thousand letters were returned as undeliverable.
Critically, the potential voters who are impacted are concentrated in "Milwaukee and Madison — the state's Democratic strongholds." Voters in those areas "account for 14% of Wisconsin's registered voters but received 23% of the letters."
The lesson of 2017
The 234,000 voters were flagged by the Electronic Registration Information Center (ERIC), a non-profit organization that Wisconsin joined in 2016. The mission of ERIC is to improve the accuracy of voting rolls by sharing information among states. Twenty-nine states and the District of Columbia are members.
Joining ERIC was not necessarily a bad idea. Between 2012 and 2018, ERIC "identified 26 million people who are eligible but unregistered to vote." States can use this information to increase their percentage of registered voters.
But another goal of ERIC is to help states maintain accurate voting rolls. It will flag voters who, for example, may have registered a car in another state as a potential "mover," who is no longer eligible. Every two years, ERIC members are required to reach out to this population to give them an opportunity to confirm or update their voting status. States are not required to purge anyone from their rolls as a condition of ERIC membership.
The first such letter was sent out in 2017 to 340,000, and voters were removed if the state didn't hear back from them in 30 days. There were a lot of problems. The Wisconsin Election Commission "determined many voters got the postcards who shouldn't have because of faulty data." For example, in the Democratic stronghold of Milwaukee, "44,000 were removed from the voter rolls as part of the effort." But the Commission later realized "about 21,000 people should not have been removed."
The Election Commission scrambled to correct the errors and ultimately gave "voted to let local clerks make their own decisions on who to reinstate." The registrations of the erroneously purged voters in Milwaukee were restored.
That is why, on a bipartisan basis, the Wisconsin Election Commission voted to delay taking any action on the population receiving these letters until 2021. There are legitimate concerns that the information is not reliable and should not be immediately used to remove potential voters in the months before an election.
The definition of "reliable"
Lawyers for WILL, meanwhile, point to Wisconsin Statute § 6.50(3). That provision requires that "[u]pon receipt of reliable information that a registered elector has changed his or her residence to a location outside of the municipality" the state will mail that person a notice. Under this provision, if the person "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."
The Wisconsin Election Commission argues that this provision does not apply because the information from ERIC should not be considered "reliable information." The Wisconsin legislature required the state to join ERIC but did not "enact any specific processes for the Commission or local election officials to deal with information about voters which the state receives from ERIC."
Therefore, the process is under the purview of the Commission, which "based its decisions on lessons learned from the 2017 movers mailing."
The money behind WILL
If you want to know what motivated WILL to file its lawsuit, follow the money. WILL was created in 2011 with "the help of a $500,000 grant from the Lynde and Harry Bradley Foundation." The Bradley Foundation has donated $4.8 million to WILL since its founding. WILL "now includes research and advocacy arms and employs 18 attorneys, researchers, writers and other staff, plus two contracted advisers." Its headquarters is located in a building owned by the Bradley Foundation.
The Bradley Foundation, with nearly $600 million in assets, "provides a cornerstone for the conservative movement in Wisconsin and across America."
"We're part of the right-wing movement. I don't think it's conspiratorial. At least, what we do is not conspiratorial. We're out there. People know what we're doing. We don't hide it," Michael W. Grebe, the Bradley Foundation's CEO, said. While he was running the Bradley Foundation, Grebe was also the chair of Republican Scott Walker's campaign for governor. When Walker won, Grebe headed up the transition.
In other words, WILL is part of the right-wing machinery that helps Republicans get elected in Wisconsin.
The big problem with changing course midstream
Judge Malloy is overruling the judgment of the Wisconsin Election Commission about the reliability of the data and ordering it to purge names years before it had planned. One look at the letter that was sent to potential Wisconsin voters reveals why that's a huge problem.
The letter says if you still live at your address, you can confirm your registration by simply voting in the next election.
So Wisconsinites are being told they can safely ignore the letter and confirm their registration by voting in the next election. Now a judge has ruled that anyone not responding to the letter will be purged from the rolls immediately.
Wisconsin Assistant Attorney General Karla Keckhaver asked for a stay pending appeal, arguing immediately implementing his decision would “create chaos” and do “irreparable harm.” Malloy denied a request for a stay.
Where things go from here
The state indicated it would appeal the decision, which appears headed to Wisconsin's Supreme Court, where conservatives hold a 5 to 2 majority.
With an uncertain legal outcome, Democrats are also planning to fight back with political organizing. Wisconsin voters can check the status of their registration and re-register online. The state also allows voters to register or re-register at the polls on election day if they bring proof of residence.
This, of course, is harder than just showing up and voting. And that's the point.
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