Wisconsin Supreme Court splits on whether to bypass Appeals Court and take up case directly.

An Ozaukee County judge is slapping on fines for Wisconsin Election Commission members who are defying his court order to clean up the state’s voter registrations as required by law.

Judge Paul Malloy said “time was of the essence” in a contempt order that levied fines of $250 per day on the three Election Commission members who are voting against complying with the judge’s order, according to the Associated Press. The Election Commission as a whole will be fined $50 per day until the court order is followed.

“I cannot be clearer on this,” Malloy said, according to the AP. “They need to follow the order.”

In the written order released Monday, Malloy wrote, “…the Court hereby finds that the Defendants have not complied with this Court’s Writ of Mandamus issued December 17, 2019 and that the failure to comply constitutes continuing contempt of court on the part of the Defendants Wisconsin Election Commission (“WEC”) and the following three Commissioners: Julie Glancey, Anne Jacobs, and Mark Thomsen.”

“Therefore, for the reasons stated in this Court’s oral ruling at the January 13, 2020 hearing, the Court holds that Defendants WEC and Commissioners Glancey, Jacobs and Thomsen can purge their contempt by complying with the Writ of Mandamus forthwith,” Malloy wrote. “As a remedial sanction, the Court imposes, starting on the date that the Court signs this Order, a forfeiture of $250 per day against each of the Defendants Glancey, Jacobs and Thomsen, and a forfeiture of $50 per day against Defendant WEC, until the Defendants comply with the Writ of Mandamus. “

The Wisconsin Institute for Law & Liberty (WILL), representing three voters suing the Election Commission to force the clean up of the voter registrations, asked Judge Malloy on January 2 to issue the contempt order. Rick Esenberg, President and General Counsel for WILL, issued a statement after Monday’s court order.

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

The decision by Judge Malloy is currently being appealed by the state Attorney General Josh Kaul (D) despite a lack of a vote in support of an appeal by the Election Commission. However, the District 4 appeals court in Madison refused to issue a stay in the case, leaving Malloy’s order in place.

The Wisconsin Supreme Court declined Monday, on a 3-3 vote, to take up the case directly as WILL requested. Justice Dan Kelly, running for a full term on the Supreme Court, declined to participate in the decision. Conservative Justice Brian Hagedorn joined with liberal Justices Ann Walsh Bradley and Rebecca Dallet in voting against taking the case directly, leaving the issue with the Appeals Court. The Supreme Court can still take up the case after the Appeals Court.

After the Supreme Court decision, Esenberg noted how the court split on the decision. “The Supreme Court’s split on our bypass petition tells us little of how the Court would view the merits after full briefing and argument,” Esenberg said. “We look forward to making the case in the Court of Appeals that the Wisconsin Elections Commission must follow state law.”

At issue is a state law requiring the Election Commission to remove voter registrations if they have reason to believe a voter has moved and the voter does not respond to a mailing from the Election Commission asking for information within 30 days.

According to state law, “If the elector no longer resides in the municipality or 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.”

If the commission does not receive a response, then the voter is moved to “inactive” status. Voters whose registrations were affected by the state law could still re-register up to and including the next Election Day. Wisconsin has same-day voter registration.

However, the Election Commission determined in June that such a voter will be moved to “inactive” status after 12 to 24 months, not after 30 days. When the Election Commission failed to follow state law, WILL sued on behalf of three Wisconsin voters.

On December 13, Malloy issued his order requiring the Election Commission to follow state law and remove the voter registrations in question. The written order was issued December 17.

“I don’t want to see anybody deactivated, but I don’t write the legislation,” Malloy said at the time, according to the Associated Press. “If you don’t like it, then I guess you have to go back to the Legislature. They didn’t do that.”

The case is also headed to federal court where the Wisconsin League of Women Voters, a Democratic special interest group, is suing to prevent the clean up of the voter registrations. Both WILL and Republicans in the legislature have asked the federal judge if they could intervene in that case to request the case’s dismissal.

In the meantime, no stay of Malloy’s order has been issued in either state or federal court. On Monday, Malloy refused to issue a stay of his contempt order despite a request by Kaul.

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