WILL’s Harvard Lawyers Fail at Voter Purge

The conservative Wisconsin Institute of Law & Liberty (WILL) had assembled four of its seven lawyers to argue the case, including three of its four Harvard-degreed lawyers: Rick Esenberg, Anthony Lococo and Brian McGrath. The lawyers had filed a brief demanding that the Wisconsin Elections Commission be ordered to purge the voter rolls of addresses that were allegedly out of date. 

Esenberg, the director of WILL, wanted to remove as many as 188,000 people from the voting rolls whose addresses might be out of date, based on an analysis by the Electronic Registration Information Center, Inc. (ERIC), a multi-state consortium created to improve the accuracy of voter registration systems. ERIC uses data from the state Division of Motor Vehicles, Social Security and the U.S. Postal Service to see when a registered voter has moved, but results may simply reflect mismatches in names and are often inaccurate.  

And minority voters are more than twice as likely as white voters to be erroneously reported as having moved, a recent Yale University-led study found.

No matter, WILL’s men from Harvard argued (and hell, it was a Yale study), the state must “follow the law.” The election commission is required by the statute to do this purging. 

Except that it’s not, as the majority decision by Wisconsin Supreme Court Justice Brian Hagedorn clearly explained. State statutes define the roles of three actors in overseeing elections, he wrote: 1) a “municipal clerk”; (2) a “board of election commissioners”; and (3) the “Wisconsin Elections Commission” or “the commission.”

A board of election commissioners has been established “only in the City of Milwaukee and Milwaukee County…to carry out the duties otherwise accomplished by municipal and county clerks everywhere else,” Hagedorn wrote. “It should therefore come as no surprise that the phrase ‘municipal clerk or board of election commissioners’ appears in tandem all over our election statutes because this describes the duties of local election officials. In fact, this conjoined phrasing appears dozens of times in chapter 6 alone.”

And under the law it is the duty of the municipal clerk in 71 counties or the board of election commissions in the city and county of Milwaukee to change a voter’s registration “from eligible to ineligible status… upon receipt of reliable information that a registered elector has changed his or her residence within the municipality,” Hagedorn wrote. 

WILL’s argument that state officials should instead do this is based on trying to mix up “a board of election commissioners,” the legal language for Milwaukee’s election officials, with the Wisconsin Elections Commission. But as Hagedorn noted, the Wisconsin Elections Commission “has a separate defined nomenclature” in state statutes. “In chapters five through ten and 12 of the statutes, ‘commission’ means the elections commission. Hundreds of times in the chapters following, the legislature uses either ‘commission’ or occasionally, ‘elections commission,’ to denote the Commission.”

The plaintiff’s “primary argument in this case that the Commission is a ‘board of election commissioners’… disregards nearly every foundational principle of statutory interpretation,” Hagedorn writes.

In her dissent, even the often activist conservative Justice Rebecca Bradley doesn’t buy the idea that the “board of election commissioners” is the same as the state election commission. (And Justice Annette Ziegler signed on to this dissent.) However Bradley argued that the statutes make the state commission “responsible for the design and maintenance of the official registration list” statewide and… gives WEC ‘responsibility for the administration of” Chapters 5 to 10 and 12. “Reading these statutes as a whole,” she argued, means WEC can “maintain” the lists by updating “the status of ineligible voters.”

Except that the law clearly states this is the duty of local election officials. There is “no credible argument” that this is the state commission’s duty, Hagedorn writes and the “plain meaning” of the statutes is clear. So clear that Chief Justice Patience Roggensack, a kneejerk supporter of conservative and Republican-backed legal theories, signed on to the majority opinion, along with the three liberal justices, Ann Walsh Bradley, Rebecca F. Dallet and Jill Karofsky. 

In short, WILL’s primary argument was so weak not one of the court’s seven justices agreed with it.  As for Hagedorn’s majority opinion, while some Republicans have blasted him as not a true conservative, he ran for office as a strict constructionist and has ruled repeatedly as promised, a stickler for the law as written. That includes writing a recent majority opinion that overthrew Gov. Tony Evers’ repeated pandemic emergency orders.  

But in a press release, Esenberg tried to shift the blame for his woefully weak legal argument, complaining that “The Court held today that the legislature created a duty and failed to provide an effective way for that duty to be carried out or enforced by voters.” On the contrary, it left that duty to locally election officials, as spelled out under the law. 

“It is now up to the legislature to fix the law,” Esenberg noted, signaling where he thinks the battle should next be fought. Except that Evers is sure to veto any such law. For now the push to purge the state voting rolls is dead.