Sept. 16, 2020 – The Wisconsin Supreme Court started the 2020-21 term this month with 30 cases on its docket, including one to decide whether a circuit court could order the Wisconsin Elections Commission to deactivate thousands of voter registrations.

That case, Zignego v. Wisconsin Elections Commission, is set for oral argument on Sept. 29, as is another voter case – Jefferson v. Dane County.

The Jefferson case – filed by Wisconsin’s Republican Party – involves the state’s photo ID requirement and whether the COVID-19 pandemic could serve as a basis for voters to obtain absentee ballots without providing photo ID under a statutory exception.

Both cases have the potential to impact the Nov. 3 election if the court decides the cases before then.

Zignego v. Wisconsin Elections Commission

The Ozaukee County Circuit Court granted a writ of mandamus, ordering the Elections Commission to comply with Wis. Stat. section 6.50(3), which requires municipalities to deactivate a voter’s registration “upon receipt of reliable information that a registered elector has changed his or her residence to a location outside of the municipality.”

The municipal clerk must first notify the elector of possible deactivation and give 30 days to respond. Several taxpayers and registered voters sued the Elections Commission members, arguing the commission was not complying with section 6.50(3).

In addition to ordering the writ of mandamus for registration deactivations, the circuit court later held commission members in contempt for failing to comply with the order.

Appeals Court Reverses

On appeal, the appeals court reversed, concluding that section 6.50(3) places no duties on the Wisconsin Election Commission, a state agency, and refers only to duties of “the municipal clerk or board of election commissioners,” municipal governmental bodies.

In 2015, the Wisconsin Legislature enacted a statutory subpart to make Wisconsin a member of the nonprofit Electronic Registration Information Center (ERIC).

According to the appeals court, “ERIC strives to help its member states identify persons who may be eligible to vote but are not registered, voters who may have moved their residences since their last voter registrations, and voters who are deceased.”

Through ERIC data, member states are required to contact voters whose registrations show address inconsistencies, but does not authorize a change in registration status.

ERIC provides a report to the Wisconsin Elections Commission every two years that identifies voters who may have moved out of the district assigned to their registration.

In 2017, ERIC identified more than 340,000 voters who possibly moved, based on comparative data from agencies like the Department of Motor Vehicles and the U.S. Postal Service. The commission sent these voters postcards, notifying them they may have to re-register to vote if they moved outside their previous voting district.

The notice also asked the voters to sign and return the postcard, within 30 days, if their registered residence had not changed. Almost half updated their voter registrations, but more than 134,000 had their registrations deactivated after failing to respond.

However, the commission later learned that “a portion of the ERIC-provided data did not accurately indicate whether an elector had changed, or intended to change, his or her residence address for purposes of his or her voter registration.”

In other words, some voters may have identified a different address tied to a vehicle registration or for some other purpose, but did not intend to change their home address for voting purposes.

“Further, the erroneous deactivation of some elector registrations by the Commission because of nonresponse to the October 2017 mailing caused what the Commission’s administrator described as ‘problems’ during the 2018 elections and resulted in the Commission reactivating the registrations of electors who were deactivated in error,” according to the appeals court decision.

“For example, the City of Milwaukee, the City of Green Bay, and the Village of Hobart requested reactivation of the registrations of all of the more than 38,000 ERIC Movers in their jurisdictions who had their voter registrations deactivated by the Commission.”

After receiving another ERIC report in 2019, the state Elections Commission sent another notice to about 230,000 voters, asking them to respond if their residences had changed. But it did not say registrations would be deactivated if they failed to respond.

“The Commission decided that it would take no immediate action regarding the electors who did not respond to the October 2019 mailing but, rather, would seek guidance from the legislature regarding further action,” the appeals court noted.

The commission asked the legislature to legislate specific procedures with respect to ERIC data and grant rulemaking authority with respect to voter deregistration.

In November 2019, before consideration of any legislation, the plaintiffs filed their lawsuit against the Wisconsin Election Commission to deactivate registrations.

The lawsuit alleged that the Commission violated Wis. Stat. section 6.50(3) “by not deactivating the registrations of those electors who did not respond to the October 2019 mailing within 30 days of the date of the mailing.”

But the appeals court concluded the statutory language was clear: It does not grant the Wisconsin Elections Commission authority to deactivate voter registrations; only municipalities can do that. Now, the Wisconsin Supreme Court will decide.

Voter ID Case

In Jefferson v. Dane County – an original action – the Republican Party of Wisconsin asks the state supreme court to rule that voters cannot use COVID-19 as a basis for declaring a photo ID exception that applies to voters who are “indefinitely confined.”

Typically, voters must show photo ID before obtaining an absentee ballot. However, there are exceptions, including one that applies to those who are “indefinitely confined” to their homes because they are ill, infirm, elderly, or disabled.

The clerks for Dane and Milwaukee counties, ahead of the April 7 election, informed voters that, because of the COVID-19 pandemic and the statewide Safer at Home order, they could request an application for an absentee ballot on the basis of indefinite confinement and would not be required to show photo ID if not able to provide one.

The lawsuit alleges that many voters did indeed request absentee ballots as “indefinitely confined,” and obtained absentee ballots without providing a photo ID, “even though they were not themselves physically ill, infirm, elderly, or disabled."

In response, on March 29, the Wisconsin Election Board (WEB) adopted guidance to note that indefinitely confined status “shall not be used by electors simply as a means to avoid the photo ID requirement without regard to whether they are indefinitely confined because of age, physical illness, infirmity or disability.”

But the clerks, in public statements, asserted that the WEB guidance was not contrary to their position that voters could elect an “indefinitely confined” status to request an absentee ballot if they could not obtain a valid photo ID because of the pandemic.

The plaintiffs assert that these public pronouncements presumably had a significant impact on the April 7 election because, unofficially, 72 percent of all votes cast were by absentee ballot and Milwaukee and Dane counties are the largest in Wisconsin.

The respondents argue that the case is moot and the plaintiffs make repeated assertions “but cite no facts to support those allegations.”

“The Petitioners request an advisory opinion seeking a blanket declaration regarding the application of Wis. Stat. § 6.86(2)(a) to hypothetical voters in a future election,” the respondent’s brief states. “Their request for corrective action also is dependent on assumed facts not in the record and should not be considered.”

Now, the Wisconsin Supreme Court will decide. For a listing of other cases on the Wisconsin Supreme Court’s docket, see the Table of Pending Cases.