MADISON, Wis. (AP) — A conservative law firm asked the Wisconsin Supreme Court on Wednesday to quickly overturn an appeals court ruling that stopped the purging of more than 200,000 people from the state's voter rolls, a move that Democrats argued was intended to make it more difficult for their voters to cast ballots.
Moments after the filing, a conservative justice on the Supreme Court who previously sat out the case because he's on the ballot on April 7 said he would “rethink” that decision after the election. The court deadlocked 3-3 without Justice Dan Kelly's participation when asked to take the case earlier, so he could be a deciding vote.
The Wisconsin Institute for Law and Liberty, which is representing three voters, asked the state Supreme Court to expedite its consideration of the case so it can be resolved before the November presidential election. Wisconsin is a narrowly divided state that is expected to be one of a handful that could determine whether President Donald Trump wins re-election.
The state's high court must first agree to take the case before deciding how quickly it wants to schedule arguments.
Wisconsin's presidential primary is April 7, but the appeal does not ask for the court to act in time for that election. A state appeals court last month overturned an Ozaukee County judge's ruling ordering the purge and dismissed the case, setting up this appeal.
“This is a critical matter for our state,” said Rick Esenberg, president of the group bringing the appeal. “Wisconsin voters deserve to have confidence in the integrity of this year's elections.”
Wisconsin Elections Commission spokesman Reid Magney declined to comment.
The Supreme Court's tie in January when first asked to take the case before the appeals court heard it occurred after Kelly recused himself because he did not want to create the appearance of a conflict of interest.
Kelly told the Cap Times newspaper in an interview Wednesday that if he loses the April 7 election there would be no reason to sit out the case.
"I wouldn’t see any reason to not honor the oath that I took to sit on all the cases that came before us," he told the newspaper. It was unclear whether Kelly would participate should he win. Kelly told the newspaper if "the reason for recusal is no longer there," he'd “just have to reconsider at that point.”
Kelly faces liberal Dane County Circuit Judge Jill Karofsky in the election, with the winner joining the court on Aug. 1.
No voters have been deactivated while the legal fight continues. The appeal argues that if votes are to be deactivated before the Aug. 11 primary, an order would have to be issued by June 19 to ensure no absentee ballots are mailed to voters who are removed from the rolls.
The voter purge lawsuit argued that the state elections commission broke the law when it did not remove voters from the rolls who did not respond within 30 days to a mailing in October indicating they may have moved. The commission wanted to wait until after the November 2020 presidential election before removing anyone because of inaccuracies found while previously attempting to identify voters who may have moved.
The appeals court said in its unanimous decision last month that the law in question does not refer to the Elections Commission or give any duties to it related to deactivating voters. The commission argued that the power to do that rests with local election clerks. The appeals court agreed.
That ruling puts Wisconsin's voter rolls in “chaos,” the appeal filed Wednesday argued.
Because voters who moved were concentrated in more Democratic areas of the state, liberals argued that the lawsuit was meant to lower turnout on their side. Republicans countered that it was about reducing the likelihood of voter fraud and making sure that people who moved are not able to vote from their previous addresses.
Trump won Wisconsin by fewer than 23,000 votes in 2016. Another close election is expected this year, putting even more focus on the fate of more than 200,000 voters who could be taken off the rolls. Voters whose registration is deactivated can register again later or on Election Day at the polls.
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