The Wisconsin Elections Commission, the state agency in charge of administering elections, voted yesterday to ask the state legislature for guidance on how to handle the records of voters who may have moved
The move comes after the Wisconsin Institute for Law and Liberty, a conservative legal group, filed a lawsuit against the Commission last month for allegedly violating state law. The Commission dismissed a similar complaint filed by the Institute in October.
Under state law, the Wisconsin Elections Commission must send letters to registered voters who have moved out of their municipality informing them they either have to re-register or, if there has been a mistake, send an enclosed postcard back.
After thirty days, if the postcard hasn’t been sent back or that voter hasn’t re-registered, then the Wisconsin Elections Commission deactivates their voter status, so they won’t be able to vote until they re-register. The Commission sent out about 234,000 letters this October, but has yet to deactivate any voters as a result of the mailing. Rick Esenberg, the President of the Wisconsin Institute for Law and Liberty, says this is a clear violation of state law.
“The law requires the Wisconsin Election Commission to send these notices and to deactivate the registration of people who have not returned the notice within thirty days,” says Esenberg. “Now, whether you think that’s overly harsh or a good idea or a bad idea really doesn’t matter. Administrative agencies don’t get to make the law. We have a system of separation of powers: the legislature makes the law and the executive carries the law out. And it must carry the law out whether or not it agrees with it.”
Esenberg says that if the legislature changes the law, then the state’s election commission should follow the new law.
The Commission’s current plan is to keep the status of all voters the same until April 2021, after the spring primary and fall general election. At the heart of commission’s defense is a concern about potential inaccuracies in a multi-state data system called “ERIC.”
That’s short for the Electronic Information Registration Center, which is a system used by forty-six states and D.C. to track information about voter registration.
The Washington Post reported in 2017 that ERIC had inaccurately reported over five million registrations.
The Wisconsin election commission says that they had found errors in past ERIC data. They concluded that “at least 14% of the electors who appeared to have changed their voting residences had not, in fact, moved.”
Jon Sherman is the Senior Counsel for the Fair Elections Center, a national election reform group. He’s joined the lawsuit in defense of the Commission, and says the WEC isn’t violating state law because some of the data is inaccurate.
“Wisconsin law is clear that you can only remove a registered Wisconsin voter from the rolls if you have reliable information. That’s the phrase in the statute; reliable information that they have had a residential address change — that they’ve moved,” says Sherman. “The problem is the Electronic Registration Information Center collects data from DMV and other sources, and there’s a lot of inaccurate data in the Wisconsin DMV transaction records that ERIC relies upon. People put down addresses other than a residential address when they apply for, say, a commercial drivers’ license. People list workplace addresses, they list vacation home addresses, so this is not reliable information.”
Sherman says the threshold of proof for an address change should be higher and they are filing to dismiss the case.
In 2017, the Wisconsin Elections Commission sent a similar mailing to voters. After that mailing, the commission did deactivate over 300,000 potential voters who may have moved from the rolls.
State lawmakers have not yet said whether they will address this case directly or wait for the circuit court decision.A hearing for the lawsuit is scheduled for Thursday in Ozaukee County.
A spokesperson for the Wisconsin Elections Commission declined a request for comment, saying they don’t comment on active lawsuits.