Judge finds Wisconsin elections commissioners in contempt of court, orders them to quickly remove people from the rolls

Editor's note, Jan. 14, 2020: One day after this story first published, an appeals court ordered the state to keep more than 200,000 people on its voter rolls. See the new story here.

PORT WASHINGTON - An Ozaukee County judge found the state Elections Commission and three of its members in contempt of court Monday, saying they had flouted his December order to remove thousands of people from Wisconsin's voter rolls.

"I can’t be any clearer than this," Judge Paul Malloy said. "They need to follow my order."

Hours later, the state Supreme Court ruled it would not get involved in the case for now, leaving it to a Madison-based appeals court to handle. That decision gave liberals hope they could stop the voter purge.

Malloy ruled the commission must pay $50 a day until it starts taking people off the rolls. In addition, he fined the three Democrats on the commission who have fought taking people off the rolls — Ann Jacobs, Julie Glancey and Mark Thomsen — $250 a day each.

Jacobs said she believes Malloy's initial findings were incorrect and she does not want to begin taking people off the rolls even though she's been found in contempt of court.

"If we are going to treat voting as the central component of our democracy, we need to be far less cavalier about taking people off the rolls," she said.

At issue is the voting status of more than 200,000 people in one of the most politically prized states in the 2020 presidential election. Donald Trump beat Hillary Clinton in 2016 by fewer than 23,000 votes, becoming the first Republican to take the state's electoral votes since 1984.

If voters are removed from the rolls, they can re-register to vote online at myvote.wi.gov, at their clerk's offices or at the polls on election day.

The commission, which consists of three Democrats and three Republicans, is to meet Tuesday to decide whether to begin removing people from the rolls. The process takes about three days.

Republicans would need to flip at least one Democrat to get a majority to remove people from the rolls. Glancey and Thomsen did not return messages Monday.

Election season is fast approaching. There is a Feb. 18 primary for local offices, state Supreme Court and a vacant congressional seat in northern Wisconsin. Some absentee ballots have already been mailed to voters, potentially complicating any effort to take people off the voter rolls.

Dozens of people, many with tape over their mouths, held a rally outside the courthouse before the hearing. Rev. Greg Lewis, president of Souls to the Polls, said he worried the legal fight would lead to so much confusion that some people would give up on trying to vote.

"This is not checkers. It's chess, and the people who re doing this understand that the frustration will cause a lot of people not to even want to vote," he said.

The Wisconsin Elections Commission in October notified more than 230,000 people it believed they may have moved and asked them to update their voter registrations or confirm they were at the same address. It planned to remove them from the rolls in 2021 if they didn't act.

Three voters represented by the conservative Wisconsin Institute for Law & Liberty sued, arguing the state had to remove them from the rolls much faster. Malloy agreed and ordered the voters purged from the rolls.

The commission has deadlocked on whether to take people off the rolls as it pursues its appeal. Their inability to take action prompted the move to find the commission in contempt of court.

With Monday's decision, Malloy found the three Democrats on the commission in contempt of court because they had not agreed to take people off the rolls, as the Republican commissioners sought at two meetings last month.

But the Supreme Court's decision not to get involved in the case for now offered liberals hope they could stop the removal of voters as they press their case before the District 4 Court of Appeals.

The justices split 3-3 on whether to accept the case, leaving them a vote short of taking the case.

Conservative Justice Brian Hagedorn joined the court's two liberals, Justice Ann Walsh Bradley and Rebecca Dallet, in saying the high court shouldn't take the case. The court's other conservatives — Chief Justice Patience Roggensack and Justices Rebecca Bradley and Annette Ziegler — contended the Supreme Court should have taken the case.

"The court shirks its institutional responsibilities to the people who elected us to make important decisions, thereby signaling the issues are not worthy of our prompt attention," Rebecca Bradley wrote for the dissenters.

The Supreme Court may eventually weigh in, but Monday's decision means it will let the appeals court handle it first. But Rebecca Bradley contended even if the high court ultimately gets the case, it wouldn't be able to render a decision that could be implemented before the November presidential election.

"Each person's right to vote should be protected, but by its inaction, this court jeopardizes consistency in the exercise of that right," she wrote.

The justices who did not want to take a case did not write an opinion explaining their reasoning.

Deadlocks on the high court are unusual. It was possible in this case because conservative Justice Daniel Kelly has stepped aside from the case. Kelly said in an interview last week he wasn't participating in anything related to the case to avoid the appearance of a conflict of interest because he is on the ballot this spring.

"I just think it would be inappropriate for me to be standing in judgment of a case that could potentially affect who might be voting for me," he said.

Commission to meet Tuesday

Attention now shifts to the commission, which will decide Tuesday whether to remove voters from the rolls in the face of the contempt finding.

Robert Spindell, a Republican on the commission, said he would try to work with Democrats to decide how many voters to target for removal and how to notify them that they were being taken off the rolls.

"I am pleased with the decision and I hope all six of us on the Elections Commission follow the law and follow the judge’s order. I know at least three of us will," Spindell said.

Spindell wasn't on the commission when it made its decisions about how to handle the voter rolls. He encouraged WILL to file its lawsuit over the rolls before he was appointed to the commission by state Senate Majority Leader Scott Fitzgerald. R-Juneau.

RELATED: A judge ordered the state to purge more than 200,000 voters from the rolls. What should I do if I'm one of them?

WILL's president, Rick Esenberg, said he hoped Monday's order would prompt the commission to take people off the rolls.

“Court orders are not, and have never been, optional. It is our hope that today’s decision will cause the Wisconsin Elections Commission to finally follow state law," he said in a statement.

Democratic Attorney General Josh Kaul, who represents the commission, said he was disappointed Monday's contempt ruling.

"The outcome of this case will impact the voter registrations of well over 100,000 Wisconsinites," Kaul said in a statement. "Appellate review of such a consequential decision is clearly appropriate, and the Wisconsin Elections Commission has diligently sought such review."

At Monday's hearing, Assistant Attorney General Karla Keckhaver argued the commission should not be found in contempt while it seeks a review of Malloy's decision.

She noted his initial order did not include a deadline for when the commission was to act. Malloy acknowledged that but said he had been clear that the commission was to act "forthwith."

The judge expressed frustration with Thomsen, one of the Democratic members of the commission, for comments he has made about the case. After a recent meeting, Thomsen told reporters Malloy's initial order was one person's interpretation of state law.

"It isn’t smart for people who aren’t following the court’s order to make public comments or go on radio shows where the judge might see them," Malloy said. "I found the conduct disrespectful. … To say this is one person’s opinion is not accurate. It is one person’s opinion, but the person is a judge, trained, taken an oath to follow the law and I don’t think any of the lawyers here think I haven’t done my share of work on the case."

Jacobs, one of the other Democratic commissioners, said after Monday's ruling she did not want to start taking people off the rolls because the commission is seeking an appeal. She and other commissioners contend the law over removing people from the rolls applies to local clerks but not the state commission.

Number of affected voters unknown

Elections officials sent the letters based on information compiled by the Electronic Registration Information Center, or ERIC, a coalition of 28 states that tries to keep voter rolls as accurate as possible. ERIC checks post office and Division of Motor Vehicle records to identify people it believes have moved, but in some cases flags people who have not changed addresses.

Unclear is exactly how many voters could be taken off the rolls.

The commission sent letters to about 232,500 voters. But election officials have said tens of thousands of those voters are believed to have moved within the same municipality.

State law provides for removing people from the rolls if they move from one community to another, but not if they move within that community. Elections officials are supposed to change people's addresses on voter records if they move within the same municipality, but that duty typically falls to local clerks rather than the state commission.

Malloy signaled he would give the commission leeway on how to deal with that issue.

WILL brought its lawsuit on behalf of three voters from suburban Milwaukee — Frederick Luehrs III, David Opitz and Timothy Zignego. Opitz is a former state lawmaker and former chairman of the state Republican Party. Zignego runs a road construction company and is a frequent donor to GOP candidates. Luehrs is a maintenance manager who has not made political donations in Wisconsin, according to state and federal campaign finance records.

The commission has appealed the case to the District 4 Court of Appeals in Madison. WILL has asked the Supreme Court to take the case without letting the appeals court weigh in.

In addition to the lawsuit in state court, there is one in federal court brought by the liberal League of Women Voters, which wants to keep people on the rolls. The voters who brought the state lawsuit and Republican lawmakers have asked to intervene in the federal case so they can argue the matter should be left to state courts.

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.