Milwaukee Journal Sentinel
MADISON – Whether more than 100,000 Wisconsinites remain on the voter rolls likely hinges on Brian Hagedorn, who won a seat on the state Supreme Court last year by appealing to conservatives but who has parted ways at times with other Republican-backed justices.
At an early stage in the lawsuit over voter rolls, Hagedorn was in agreement with liberals on the court on the big issues in the case. But he gave few hints Tuesday on his current thoughts.
GOP-backed justices control the court 4-3, and Hagedorn’s views could tip the case either way.
The initial ruling by Hagedorn and the liberals prevented the court from taking up the case sooner. The justices are now expected to rule after the Nov. 3 presidential election. That would mean those voters could cast ballots this fall without having to re-register to vote.
The case remains important because it will decide how the state in future elections treats voters who may have moved. During Tuesday’s arguments, Hagedorn asked questions about the powers of the state Elections Commission but did not signal what he thinks of the case.
Also Tuesday, the court considered a case that deals with voters who label themselves indefinitely confined. Those voters do not have to provide a photo ID to get an absentee ballot, as other voters must.
The status of those voters has taken on prominence because Wisconsinites are increasingly turning to absentee ballots because of the coronavirus pandemic. Some may be identifying themselves as confined because of the threat of the illness.
Last year, the state Elections Commission notified about 232,000 voters that it believed they had moved. The commission planned to remove voters from the rolls in 2021 if they hadn’t confirmed their addresses or revised their voter registrations by listing new addresses by then.
Three suburban Milwaukee men sued with the help of the conservative Wisconsin Institute for Law & Liberty. They contended state law required those on the list to be quickly removed from the voter rolls.
An Ozaukee County judge agreed with them, but an appeals court unanimously ruled state law did not require the commission to take the voters off the rolls.
The lawsuit centers on a state law that says voters should come off the rolls if they have not responded within 30 days to notifications that there is reliable information that they have moved. The appeals court concluded that law applies to local clerks — not the state commission.
Hagedorn didn’t say much Tuesday about what he made of the arguments in the case. In his questions, he paid the most attention to how the Elections Commission in 2017 and 2019 handled lists of voters who were thought to have moved.
“It’s one of the questions that perplexed me in this case, reading through it, is what authority the commission thought it had to do what it did in 2017, what authority it had to recommend to its commissioners even in 2019 that we’ll just remove these (voters) in 12 to 24 months,” he said.
Also at issue in the case are questions over whether the information the state has about voters who may have moved is reliable.
The list was compiled by the Electronic Registration Information Center, a consortium that helps 30 states and Washington, D.C., maintain accurate voter rolls.
It uses change-of-address forms submitted to the U.S. Postal Service and vehicle registrations in Wisconsin and other states that belong to the coalition. But it doesn’t use commercial data that also track addresses, and officials have acknowledged the system they use sometimes wrongly flags people as having moved.
In some cases, people are incorrectly labeled as moving when they have registered a vehicle at a business address or relative’s home. Officials have said they believe the list is largely accurate but they do not know precisely how many errors are on it.
Since the voters were first contacted, the size of the list has shrunk to about 129,000. That’s because some on the list have revised their registrations or confirmed they had not moved.
Wisconsin allows voters to register at the polls. Anyone taken off the rolls can get reinstated by providing proof of residence.
Those who brought the lawsuit tried last year to get the Supreme Court to take the case before the Madison-based District 4 Court of Appeals issued a decision.
The high court in January deadlocked on whether to put the case on a fast track. Hagedorn and two justices backed by Democrats were on one side and three justices backed by Republicans on the other.
The conservative justice Daniel Kelly did not participate in that decision because he was on the ballot in April. He was defeated by the liberal Jill Karofsky, who took part in Tuesday’s arguments.
With no majority vote on whether to fast track the case, it remained with the appeals court. The appeals court then ruled the voters should remain on the rolls and the Supreme Court agreed this summer to review that decision.
If the Supreme Court sides with those trying to take people off the rolls, the justices will have to decide whether to hold Democrats on the Elections Commission in contempt of court.
After Ozaukee County Circuit Judge Paul Malloy ruled against the bipartisan commission, the Democrats prevented the removal of voters from the rolls. Malloy found the Democrats in contempt, but the appeals court later invalidated his contempt finding.
Hagedorn, who joined the court in 2019, typically sides with the conservatives but has broken with them at times.
This month he sided with the liberals in a 4-3 ruling that kept the Green Party’s presidential ticket off the ballot this fall. Republicans wanted the liberal ticket on the ballot because they thought it could take away some support for Biden.
In May, Hagedorn joined the liberals in dissent in saying the conservative majority was wrong to strike down the stay-at-home order Democratic Gov. Tony Evers’ administration had issued to fight the spread of COVID-19.
In that dissent, Hagedorn contended the conservatives were doing what they often accuse liberal justices of doing — trumping up specious arguments to get the outcomes they want.
“We are a court of law. We are not here to do freewheeling constitutional theory. We are not here to step in and referee every intractable political stalemate,” he wrote.
“We are not here to decide every interesting legal question. It is no doubt our duty to say what the law is, but we do so by deciding cases brought by specific parties raising specific arguments and seeking specific relief.”
Indefinitely confined voters
The justices also heard arguments Tuesday in a case that emerged after Dane County Clerk Scott McDonell posted a notice online ahead of the April election telling voters that they could get absentee ballots without providing an ID by designating themselves indefinitely confined if they were staying in their home because of the pandemic.
The state Republican Party sued and the justices in March ordered McDonell to make sure advice he gave to the public on the issue was in line with guidance from the state Elections Commission.
For the April election, more than 200,000 voters called themselves indefinitely confined and did not have to provide an ID.
Eric McLeod, an attorney for the Republicans, said the court should issue a decision before the presidential election so there are no questions about who qualifies as confined. If the election is close, some absentee ballots by confined voters may be challenged, he said.
“We could see all sorts of challenges made that could throw the election into crisis,” he said.
The issue has also cropped up in a federal lawsuit over how Wisconsin will conduct this fall’s election. As part of a broader decision on several election issues last week, U.S. District Judge William Conley told the state Elections Commission it must alert voters on government websites that to be considered indefinitely confined one does not have to have a ” permanent or total inability to travel outside of the residence.”
Tuesday’s arguments before the state Supreme Court were conducted virtually because of the pandemic. The justices each appeared from their chambers and Democratic Attorney General Josh Kaul and other lawyers appeared from their own offices.
Email Patrick Marley at [email protected] Follow him on Twitter at @patrickdmarley.