Conservatives try to move voter rolls case to state Supreme Court as mayor criticizes lawsuit

Alison Dirr , Patrick Marley | Milwaukee Journal Sentinel

Conservatives sought Friday to put a lawsuit over Wisconsin's voter rolls before the state Supreme Court as Milwaukee Mayor Tom Barrett criticized the fast-moving effort to cancel the voter registrations of more than 200,000 people.

Officials estimate that more than one in 10 of Milwaukee's registered voters would be affected.

Those who brought the lawsuit contended their latest filing prevents an appeals court in Madison from acting for the time being — keeping in place an Ozaukee County decision from last week that says the voters must be quickly taken off the rolls.

Changing the venue could also give those bringing the lawsuit a long-term advantage because conservatives hold a 5-2 majority on the court.

Friday's filing was made "because Wisconsin deserves a quick and authoritative ruling on whether the Wisconsin Elections Commission must follow state law," said a statement from Rick Esenberg, president of the conservative Wisconsin Institute for Law & Liberty. His group represents the three voters in suburban Milwaukee who brought the case.

The filing came as The Associated Press reported a top adviser to President Donald Trump told Wisconsin Republicans that their party had traditionally relied on voter suppression to win battleground states. Democrats seized on the comment, saying it showed Republicans were trying to keep people from voting.

At a City Hall news conference, Barrett questioned the basis for the Dec. 13 decision by Ozaukee County Circuit Judge Paul Malloy to remove people from the rolls. Barrett noted state law requires people to be removed from the voter rolls if there is "reliable information" they have moved.

"You need reliable information," Barrett said at the news conference outside the Milwaukee Election Commission. "Data used to identify voters through this process has proven to be unreliable."

The Wisconsin Elections Commission in October sent letters to more than 230,000 voters who it believed had moved. It planned to remove them from the rolls in 2021 if they didn't confirm their addresses or register at new addresses by then.

The lawsuit argued the commission must act much faster than that — within 30 days of sending the letters. Malloy agreed and ordered the purging of the rolls.

Democratic Attorney General Josh Kaul appealed to the District 4 Court of Appeals in Madison. The appeals court initially let Malloy's decision stand but was expected to issue another ruling as soon as Monday.

But the request to have the Supreme Court take the case from the appeals court blocks the appeals court from acting for now, according to the Wisconsin Institute for Law & Liberty.

That would mean Malloy's order would stand, putting renewed pressure on the Elections Commission to clear people from the voter rolls. The commission, which consists of three Democrats and three Republicans, this week deadlocked on how to respond to Malloy's order.

But attorney Jeffrey Mandell disputed what conservatives were contending about the new filing. He said he believed the appeals court could still act on the request to block Malloy's order.

Mandell represents an arm of the Service Employees International Union that sought to intervene in the case Friday.

RELATED: As many as 17% of voters are targeted to be removed from the rolls in some Wisconsin cities

"There are individuals who want to game the system, who want to make it more difficult for some people to vote," Barrett said. "Because when you have a voter split as sharp as the voter split in Wisconsin, there may be an advantage for some people to face additional barriers."

Wisconsin will be a key state in the 2020 presidential election.

Protesters decried Malloy's ruling in rallies at City Hall this week and demanded that the voter rolls be left alone.

Milwaukee Election Commission Executive Director Neil Albrecht said 35,000 people in Milwaukee "were supposedly" sent that letter regarding their registration. Only 186 responded to the mailing and asked to continue their voter registration, he said, while only 1,327 registered to vote in another municipality in response to the mailing.

"That represents about a 5% response rate to the mailing," Albrecht said. "That 95%, right now the state has no idea on their status, but yet we are rushing forward in inactivating that 95%, all based on one piece of mail sent one time to a voter."

Albrecht said the city found 600 instances in which the state had flagged a Milwaukee voter as having moved but city property records show that person still owns that property, casting doubt on the state's determination.

In an additional 2,000 cases, he said, the voter's surname matched the surname of the property owner at their listed address, indicating they're possibly a family member of the property owner and still residing at that address.

But, he said, there isn't a similar process for making such comparisons for the many renters in the city.

Barrett said the majority of registered voters in the city and state didn't provide a phone number or email address when they registered, making contact with those voters challenging.

The city's Election Commission has spent days trying to contact voters, Barrett said, and "has identified a strong sampling that, again, can confirm the unreliability of the (state's) data."

The city will share that information with the state, Barrett said.

He said no one should be asked to reregister to vote due to a data error, and the city will challenge in any way available any attempt to "wrongfully inactivate voter registration records in this city."

The 200,000-plus people were flagged as potentially having moved because they filed changes of address at the post office, registered vehicles at new addresses or provided new addresses to other government agencies. But some of the voters may have been identified as having moved even though they haven't.

RELATED: What to know about the legal fight over who should be on Wisconsin's voter rolls

The issue is playing out in two court systems. In addition to the state case, the liberal League of Women Voters of Wisconsin this week filed a lawsuit in federal court to block the immediate purge of the voter rolls.

On Friday, Republican lawmakers announced plans to try to intervene in that case. As it stands now, the state is represented in the federal lawsuit by Kaul, who opposes removing people from the voter rolls.

Assembly Speaker Robin Vos of Rochester said GOP lawmakers needed to intervene in the case to make sure someone was arguing for cleaning up the rolls. He called Democratic criticism of the issue overblown because people can reregister to vote online, at their clerk’s office or at the polls on election day.

“We live in a state with same-day registration where it takes you about two minutes to register to vote,” he said in an interview this week.

Senate Majority Leader Scott Fitzgerald, a Republican from Juneau, noted the law regarding when to remove people from the voter rolls was passed with broad support from both parties.

The measure was included in legislation that allowed online voter registration and Republicans and Democrats disagree over when the law they approved requires people to be removed from the rolls.

Trump adviser comments

One of Trump’s top reelection advisers told influential Republicans in Wisconsin that the party has traditionally relied on voter suppression to compete in battleground states but will be able to “start playing offense” in 2020 due to relaxed election day rules, the AP reported Friday.

"Traditionally it’s always been Republicans suppressing votes in places,” Justin Clark, a senior political adviser and senior counsel to Trump’s reelection campaign, said at a private event, according to an audio recording obtained by the AP. “Let’s start protecting our voters. We know where they are. ... Let’s start playing offense a little bit. 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."

Asked about the remarks by AP, Clark said he was referring to false accusations that the GOP engages in voter suppression.

"As should be clear from the context of my remarks, my point was that Republicans historically have been falsely accused of voter suppression and that it is time we stood up to defend our own voters," Clark said. "Neither I nor anyone I know or work with would condone anyone’s vote being threatened or diluted and our efforts will be focused on preventing just that."

Ben Wikler, chairman of the state Democratic Party, was critical of the comments.

"The mask is off: Trump and Republicans' plan to win in 2020 is to suppress the vote," he said in a statement.

The Associated Press contributed to this report.

Contact Alison Dirr at 414-224-2383 or adirr@jrn.com. Follow her on Twitter @AlisonDirr.