Wisconsin appeals court puts voter rolls purge on hold

January 15, 2020

Ozaukee County Circuit Judge Paul Malloy listens to attorneys from both sides Monday, Jan. 13, 2020 before making his finding at the Ozaukee County Courthouse in Port Washington, Wis., where Judge Malloy held state election officials in contempt of court for not following his order to remove thousands of people from the voters rolls.

MADISON, Wis. — A Wisconsin appeals court on Tuesday put on hold an order to immediately remove up to 209,000 names from the state's voter registration rolls, handing Democrats who had fought the move a victory in the battleground state.

The appeals court sided with the bipartisan state elections commission in putting the brakes on removing any voters while the court fight continues. It also put on hold a ruling from Monday in which a judge found the commission and its three Democratic members in contempt for not proceeding with removing the voters.

The orders came as the commission was meeting in a closed session with attorneys from the state Department of Justice to discuss the case.

A conservative law firm that brought the case — the Wisconsin Institute for Law and Liberty — had wanted the purge to happen immediately, even though the elections commission raised concerns about the accuracy of data used to identify voters who would have their registrations deactivated.

The law firm's president, Rick Esenberg, didn't directly address the court's order in a statement.

“What is true yesterday is true today," he said. "The Wisconsin Elections Commission isn’t following state law and we look forward to making that case in the Court of Appeals.”

The case is being closely watched, as Wisconsin is among a group of swing states being targeted by both Democrats and President Donald Trump this year. Trump narrowly won Wisconsin in 2016 by fewer than 23,000 votes, putting even more of a focus on every voter in the state.

Trump was back in the state on Tuesday night for a rally in Milwaukee, kicking off what is expected to be an intense fight to win Wisconsin.

The voter purge lawsuit was brought by the Wisconsin Institute for Law and Liberty, a conservative law firm. It argued that the state elections commission broke the law when it did not remove voters from the rolls who did not respond within 30 days to a mailing in October indicating they may have moved.

The commission wanted to wait until after the November 2020 presidential election before removing anyone because of inaccuracies found while previously attempting to identify voters who may have moved. Even if a voter has their registration deactivated, they can register again later or on Election Day when they show up at the polls, assuming they have the required documentation.

Because voters who moved were concentrated in more Democratic parts of the state, liberals argued that the lawsuit was meant to lower turnout on their side. Republicans countered that it was about reducing the likelihood of voter fraud and making sure that people who have moved are not able to vote from their previous addresses.

A judge last month sided with conservatives and ordered the removal of the voters. When the bipartisan elections commission deadlocked on proceeding with the purge, the judge on Monday found it and its three Democratic commissioners in contempt, and again ordered the voters' names removed.

Hours later, a divided Wisconsin Supreme Court declined to take the case. That shifted the fight back to the appeals court, which sided with the elections commission on Tuesday and put the judge's original ruling on hold.

A three-judge panel in the 4th District of the appeals court — Michael Fitzpatrick, JoAnne Kloppenburg and Jennifer Nashold — issued the ruling. They said they would have a follow-up order later that explains their reasoning, but that they wanted to act quickly given the contempt order and the commission's meeting.

Nashold was elected to the court last year after running unopposed. Fitzpatrick also ran unopposed and was first elected in 2017. Kloppenburg has been on the appeals court since 2012 and also ran unsuccessfully twice for the state Supreme Court with Democratic support.

The decision effectively hits the pause button on the fast-moving case and means there will be no immediate change to the state's voter registration rolls. There are a number of elections coming soon, including a February primary for a state Supreme Court seat, a primary in the special election to fill the 7th Congressional District seat and races for a host of local offices. Wisconsin's presidential primary is on April 7.

The issue is unlikely to be resolved in court before the presidential election. The League of Women Voters of Wisconsin also filed a federal lawsuit to stop the purge.

Kelly outraises opponents in Wisconsin Supreme Court race

MADISON, Wis.  — Conservative Wisconsin Supreme Court Justice Daniel Kelly's campaign raised more than half-a-million dollars over the last half of 2019, easily outpacing his two liberal-leaning challengers.

The candidates had a Wednesday deadline to submit campaign finance reports covering activity over the last six months to the Wisconsin Elections Commission. The reports are important because they can show which candidates are resonating with voters and who has the most money to bolster their campaigns.

Kelly's campaign manager, Charles Nichols, said Kelly's reports will show he raised $556,180 over the period. That brings his fundraising total for all of 2019 to about $800,000. He finished the year with $572,970 in the bank.

Those numbers easily eclipsed opponents Jill Karofsky and Ed Fallone's totals.

Karofsky's campaign said Tuesday that she raised about $227,500 over the period, bringing her yearly take to about $348,600. She finished the year with $181,270 in the bank.

Fallone released figures Wednesday that show he raised $77,300 over the last half of the year, bringing his yearly total to $150,700. He had $42,220 on hand.

Kelly, Karofsky and Fallone will face each other in a three-way primary on Feb. 18. The top two vote-getters will advance to the April 7 general election.

State Supreme Court races are officially nonpartisan, but Republicans are backing Kelly and Democrats support Karofsky and Fallone. President Donald Trump endorsed Kelly during a rally in Milwaukee on Tuesday, urging people to vote for him because he'll defend “the rule of law in Wisconsin.”

Karofsky's campaign tweeted in response to Trump's endorsement that Karofsky will stand up to corruption and Republicans can't handle that.

Fallone's campaign manager, Chelsea Cross, didn't immediately respond to an email Wednesday seeking comment on the endorsement.

Wisconsin choice schools win lawsuit over virtual learning

MADISON, Wis. — Wisconsin's education department said Wednesday that it will change its policy and allow private schools to count online classes toward instructional time, just as public schools can do, after a judge ruled that treating them differently was unconstitutional.

The ruling Tuesday by Waukesha County Circuit Judge Michael Bohren was a win for School Choice Wisconsin Action, a group that includes private schools in the state's choice program and advocates for them.

The lawsuit filed last year alleged that the Wisconsin Department of Public Instruction was wrong to allow public schools, but not choice schools, to count online learning hours toward the minimum number of instructional hours required each year.

In an email sent in February 2019 to attorneys for choice schools, the department's attorney said state law would have to be changed to give the department the authority to count online classes at choice schools.

But after the judge's ruling, the education department said in a statement it would be changing its policy.

“Prior to this lawsuit, the (education department) believed the law did not authorize choice schools to utilize virtual instruction,” the agency said in a statement. “Now that the court has determined it does, we will comply with the ruling.”

The judge ruled that the education department can't legally justify treating choice and public schools differently when it comes to counting online classes. Bohren said in his order that not treating choice and public schools the same on this issue violates constitutional equal rights of choice schools.

“There is not a legitimate government interest in denying choice schools the opportunity to use ‘virtual learning’ as public schools do,” the judge wrote in his ruling. “The denial is harmful to the choice schools and its students.”

Libby Sobic, director of education policy at the Wisconsin Institute for Law and Liberty law firm that represented the choice schools, hailed the ruling.

“For too long, (the education department) has been unfair in their treatment of private schools in Wisconsin’s choice programs, and today’s decision affirms that when they break the law, they will be held accountable,” she said in a statement.

Public and choice schools must provide 1,050 hours of "direct pupil instruction" in any given year for students in grades 1 through 6. The requirement is 1,137 hours for grades 7 through 12. That becomes a challenge for districts in years when many schools closed due to snow and cold weather.

Schools looking to get creative in making up the lost hours turned toward offering instruction over the internet. Last year, in the face of many snow days, various private schools in the choice program asked the education department if they could offer online classes to satisfy the hourly instructional requirement.

The department denied the request. But it had no legal authority to do that and there is no harm in allowing choice schools to count online classes, the judge said.

Not allowing it “removes a legitimate teaching technique from the choice schools, available to the public schools,” Bohren said.

Q&A: What is happening with Wisconsin's voter purge?

MADISON, Wis. — The ongoing fight over whether 209,000 people in Wisconsin should be removed from voter registration rolls has pit liberals against conservatives in the closely divided battleground state. President Donald Trump narrowly won Wisconsin in 2016 and it is expected to be one of a handful of swing states that will decide the this year's election. That's heightened attention on the fight over the voters who face being kicked off the rolls before November.

Here is a closer look at what's going on:


The Wisconsin Elections Commission identified about 232,000 people who were flagged as possibly having moved, based on a review of official documents such as Wisconsin motor vehicle records, out-of-state voter registration and motor vehicle records, and a change of address database maintained by the U.S. Postal Service. Those people were sent a mailing in October saying they should have re-registered to vote if they had moved since they had last voted. If they hadn't re-registered, they were told to contact the elections commission. They were not told that they faced deactivation by doing nothing.


The conservative Wisconsin Institute for Law and Liberty filed a lawsuit arguing that state law required anyone who didn't respond to the mailing within 30 days to have their voter registration deactivated. The elections commission didn't want to take any action until next year because of concerns that some people who received the mailing had not moved and could be deactivated anyway. The commission was worried about moving too fast because in 2017, people were deactivated who had not moved.


Voters do not register by political party in Wisconsin, so it's impossible to know how many of the targeted voters are Republicans or Democrats. But more people in Democratic strongholds than Republican areas received the mailing, fueling concerns from liberals that the case was about suppressing their votes. Republicans argue that it's about ensuring voter rolls are clear of people who may have moved and should not be registered at their old address.


No. A judge ordered them to be deactivated, but an appeals court on Tuesday put that ruling on hold. Because the state Supreme Court refused to take the case away from the appeals court, it likely will be months before the case winds its way through the court system and there's a final decision. That means it's unlikely that any of the 200,000-plus voters will be taken off the rolls before the presidential election.


Sort of, but not really. The commission consists of three Republicans and three Democrats. They split along party lines over whether to proceed with removing the voters following the first court order to do so. Because they didn't take action, a judge on Monday found the three Democrats who voted against the purge to be in contempt. But that ruling got put on hold by the appeals court less than a day later.


The lawsuits will continue. But while they do, no voters will be deactivated. And even if they are at some future date, voters in Wisconsin can always register at the polls on Election Day. That has been one of the arguments that Republicans point to when arguing that deactivating the voters now doesn't really harm them because they can always register again, even when they show up to vote.

Panel OKs public relations push on Wisconsin elections

MADISON — State elections officials voted Tuesday to hire an advertising firm to develop a public relations campaign reassuring voters that Wisconsin elections are secure and to provide information about how elections work.

The Wisconsin Elections Commission voted 4-2 to spend $260,000 to hire Madison-based KW2 to develop the campaign. The money will come from interest earned on a $7 million federal grant the state received in 2018 to bolster election security.

Two Republican commissioners — Dean Knudson and Bob Spindell — objected to spending the money on the campaign and voted against it. But Meagan Wolfe, the director of the commission, cast spending money on the campaign as en election security issue.

“This is one of the most important things we can do to protect elections in 2020," she said. “We're making sure facts have a fighting chance in a sea of misinformation."

In 2016, the U.S. Department of Homeland Security said "Russian government cyber actors" tried unsuccessfully to gain access to a Wisconsin state government website as they looked for vulnerabilities. Federal and state officials have said Wisconsin's elections systems were not compromised.

The commission approved the new public relations campaign after KW2 presented it with a survey of Wisconsin residents conducted this past fall that showed 70% of respondents said they were worried about one or more perceived threats to election security.

KW2 has recommended two additional phases of public outreach, including digital ads, that could cost up to $630,000. The commission decided to hold off on approving any additional spending until after they can evaluate the initial campaign's effectiveness during the spring elections.

The commission on Tuesday also voted to accept another federal election security grant, this one worth $7.8 million. The commission has to provide a $1.6 million match to obtain the grant, however.

Court hopeful Karofsky raises $227K in second half of 2019

MADISON — Wisconsin Supreme Court hopeful Jill Karofsky raised about $227,500 over the last six months of 2019, campaign finance reports her campaign released Tuesday show.

Reports detailing fund-raising activity over the last half of the year are due to the Wisconsin Elections Commission on Wednesday. The liberal-leaning Karofsky's campaign released figures Tuesday that show she raised $227,552 over that period, bringing her fund-raising total for 2019 to $348,600. Her totals included a $15,000 loan she gave her campaign.

She spent $167,328 over the course of the year and had $181,274 in the bank as of Dec. 31.

Karofsky and liberal-leaning Ed Fallone are trying to unseat conservative incumbent Justice Dan Kelly. All three will face off in the Feb. 18 primary, with the top two vote-getters advancing to the April 7 general election.

Officials with Fallone and Kelly's campaigns didn't immediately respond to emails Tuesday requesting their fund-raising totals.


Associated Press