Why a Voter Purge Is So Critical

This morning a state appeals court put on hold an order to immediately remove up to 209,000 names from the state’s voter registration rolls. That puts a stop — for now — to a brazen attempt to remove many legal voters from the rolls, with the clear goal of re-electing Donald Trump.

The attempt was greatly aided by Paul Malloy, Chief Judge of the Ozaukee County Circuit Court, who styles himself as a tough judge. As he noted in a speech to the Rotary Club of Thiensville-Mequon, “Ozaukee County is known as risky among drug dealers as the place you don’t want to get caught selling drugs because you will do time.”

He also offered this extra-judicial recommendation: “Avoid legalizing marijuana as it is the entry way to drugs.”

Yesterday Malloy showed his toughness again, finding three members of the Wisconsin Elections Commission in contempt of court for violating his ruling that the commission must purge the state voting rolls of those 209,000 names. The judge fined Ann Jacobs, Mark Thomsen and Julie M. Glancey $250 ­­each per day, until the voter registrations are removed from the rolls. The Elections Commission has also been fined $50 a day.

“This is unprecedented, says Madison attorney Lester Pines, who has tried cases in Wisconsin for 46 years, including numerous times before the Wisconsin Supreme Court, and says he cannot recall a contempt order that fined citizen appointees to a state agency.

The fines sounded scary except that the three commissioners are serving in an official capacity, meaning the Elections Commission would pay the fines for them, so we the taxpayers would actually foot the bill. 

And the cost for us taxpayers could have been even higher. The conservative Wisconsin Institute for Law & Liberty (WILL), which has been litigating this case, asked for a $2,000 per day fine for the three officials. But Malloy, who was appointed to the bench in 2002 by Republican Gov. Scott McCallum, and has won election three times since then, whittled that down to $250 per day. 

Still, he sent a strong message that his decision better be obeyed. “If people are free to disregard a court’s order, where do you start and stop with that.” Malloy said. “Our justice system will cease to work.” Actually, the elections commissioners merely believed it made sense to wait for appeals of the case to higher courts at the state and federal level to rule, and sure enough, the appeals court’s initial ruling — which also blocked those fines — makes Malloy look pretty silly. 

The lawyers with WILL doubtless judge-shopped before choosing the Malloy as the one most likely to buy their view of the law. The attitude of Rick Esenberg, the executive director of WILL, is suggested by his comment to the Wisconsin Examiner comparing a state effort to verify an accurate voting list to a medical test for a disease.“If you had a test for some type of disease and it said 95 percent of the time accurately that you have the disease,” he says, “a reasonable person would take the next step if you got a positive test result.”

Beyond the implication that legal voters whose names might mismatch in two different data systems are like a disease, Esenberg’s disturbing metaphor is wrong on multiple counts. For starters, there is overwhelming evidence that voter impersonation fraud is extraordinarily rare. And Republican lawyers, when asked in court cases to prove it occurs in Wisconsin, have been unable to find a single instance of voter impersonation.

Wisconsin, moreover, already has requirements that voters show photo ID and sign their name when voting, and no evidence has been presented that this is not sufficient to prevent fraud. So a test that is 95 percent accurate would remove more than 10,000 (of 209,000) legal voters from the voting rolls in order to address a nonexistent disease. Moreover, it’s far from clear the test is anywhere close to 95 percent accurate.

The state relies on the Electronic Registration Information Center or ERIC, which uses data from the DMV, Social Security and the U.S. Postal Service to see when a registered voter has moved. Wisconsin voters who were flagged based on ERIC’s data were sent a postcard to retain their registration records.

“Ninety percent of voters do not respond, but that doesn’t necessarily mean they have actually moved,” as a study by the liberal Center for Media and Democracy (CMD) found. Yet all who don’t respond get removed from the rolls. “The number of registered voters in Wisconsin dropped by 697,363 between January 2017 and February 2018, a decrease of 19%,” the CMD found. While voter rolls have rebounded somewhat since then, “as of October 1, 2019, the state voter rolls were still down by 566,012, a 15% decrease.”

Mayor Tom Barrett noted during a recent press conference that out of the 35,000 Milwaukee residents flagged by the state, just 186 people responded, and 1,327 registered somewhere else. He said many residents thought the postcard was spam mail or a scam.

“We know the data is unreliable,” says Jacobs, who has served as an election commissioner for four years. Yet Esenberg wants to immediately purge another 188,000 names, assuming 90 percent of the 209,000 names now under contention are removed by the Elections Commission. The commission, by contrast, wants to give people more time to respond and wait until 2021 to remove any names from the list. 

Nationally and in Wisconsin, purging the voting list has been proven a great way to remove Democratic-leaning voters. “The number of purged voters has been especially dramatic in Milwaukee and Dane counties, the state’s two heaviest Democratic strongholds, where nearly one in four voters have been removed from the rolls,” the CMD found. “Milwaukee County has lost 150,954 voters since the end of 2016, a 26% decrease; Dane County has lost 88,254, a 23% drop.”

Yes, the system drops some voters in Republican areas, but GOP strategists are willing to disenfranchise some of their likely voters in return for wiping out much larger numbers of Democratic voters. Moreover, Milwaukee and Dane County have by far the most outmanned election polls, where the confusion caused by purged voters could cause the most problems. “It is very likely that thousands of voters will show up to vote in November only to find that they are no longer registered,” said CMD’s David Armiak. “Fortunately, Wisconsin allows election day registration, but this could lead to confusion and delays during what is expected to be a high turnout election.”

Justin Clark, a senior political adviser and senior counsel to Trump’s reelection campaign, recently told told influential Republicans in Wisconsin that the party has “traditionally” relied on voter suppression to compete in battleground states. Esenberg and his ever-growing staff of Harvard degree lawyers are doing their best to assure that happens.  

And never has that strategy made more sense than for a president who has never had the approval of a majority of the voters. Republicans need to find every way possible to suppress or discourage voting by Democrats and independents in the 2020 election or President Trump won’t be reelected. And no state is more critical to that effort. The vote in Wisconsin, many experts believe, could decide the election, and even the purging of a small percent of the state’s voters could do the trick. Trump won this state in 2016 by just 22,748 out of about 2.9 million cast.

To Jacobs, the giveaway is that Esenberg and others pushing to purge the voter lists only want efforts “to kick voters off the rolls,” not to add any voters who were mistakenly removed. “That tells you what this is all about.”  

The stakes could not be higher. And at this point democracy in Wisconsin — and the entire nation — could depend on how the Elections Commission handles the issue. The appeals court decision has given them breathing room, but you can bet that Esenberg’s elite team of lawyers will be looking for some other way to force a voting list purge. After all, it has by now become part of the traditional way Republicans work to suppress the vote.