Frederica Freyberg:

Now to an inside look at an evolving legal case, the results of which may result in hundreds of thousands of Wisconsin voters getting purged from the state registration rolls. These are voters the State Elections Commission believes have changed address. The commission is legally required to send a notice to these voters asking them to confirm their current address. Those who do not respond are to be removed from the registration rolls. There are more than 200,000 such voters. A lot happened this week. An Ozaukee County circuit court judge held three members of the commission in contempt of court for ignoring his December order to immediately strike the voters from the rolls. The State Supreme Court turned away an appeal of the case. And an appeals court put a stay on the circuit court decision. A lot of people’s voter registrations are on the line. And a lot to unpack with UW-Madison Professor of Political Science David Canon. Thanks for being here.

David Canon:

Good to be here.

Frederica Freyberg:

So it could be said that this is all embroiled in the courts and controversy, but it is on hold for this moment, the decision to immediately purge these voters. How interesting is it to you that the State Supreme Court declined to take this case at this time?

David Canon:

I think it’s very interesting they did not take this up. I think a lot of people were expecting them to try to get quick resolution to this because by not taking the case, it virtually guarantees this will drag well into the year, maybe even past the November elections because now they’ll have the full hearing at the appeals court level. That will no doubt be appealed to the State Supreme Court then whichever side loses. Plus we have the parallel case going on in federal court right now. So there’s a pretty good chance that won’t have any final legal resolution to this until after the November election, which indeed was the commission’s original intent anyway, is to not remove those voters until after the election. So it could be this is the way it’s going to play out, kind of no matter what.

Frederica Freyberg:

It really leaves these voters, who were the recipients of these letters, potentially confused.

David Canon:

Well, right. Especially the people who haven’t moved. Like are they okay or not? Are they going to be removed from the rolls or do they need to reply to update their status with voter registration?

Frederica Freyberg:

You’ve said that this circumstance is right out of a book called “The Voting Wars.” How so?

David Canon:

Right. So there’s a book by Rick Hasen, who’s one of the nation’s experts on voting procedures. And Hasen made this argument a couple of years ago that the administration of elections used to be relatively noncontroversial. That both Democrats and Republicans wanted people to vote. They would do whatever they could to get their folks to the polls. But in the last decade or so, this has become a partisan battlefield basically where Republicans have focused on what they call election integrity and fighting voter fraud. Democrats focus on getting more access to the polls. So what you see replayed over and over again across the country is in Republican legislatures passing laws like voter ID laws and restricting access to early voting to try to limit voting, whereas Democrats are trying to do the opposite. So this is an example of one of those kinds of efforts aimed at trying to either prevent people from voting as easily or allowing people to vote. And so on a continuum of the most egregious kind of voter suppression to the more, sort of, not as harmful, I would put this more on the more normal politics side of things in that all election commissions do need to update their voter rolls. It’s part of the normal process of administering elections. The question is one of timing. Do we do this right away as the lawsuit wanted them to do or do we wait until after the November elections is what the commission wanted to do?

Frederica Freyberg:

On the national level, if impeachment is indeed, as you’ve said, a political process, how does the oath of impartiality taken by Senators this week square with that especially today?

David Canon:

That’s a really good question. The last time I was on a couple weeks ago, we talked about James Madison’s view of this. His biggest fear was having partisan politics enter the process of impeachment. And he was really cautioning against that. But we’ve definitely seen that happen from day one with the Majority Leader Mitch McConnell saying he’s going to be working on behalf of the president. Well, that doesn’t exactly sound like an impartial juror in that process. But Democrats as well have indicated that they’re very likely to vote to remove President Trump. And so in this era of partisan politics, the notion of these impartial jurors really is pretty laughable. It’s just not going to happen. The best we can hope for is they do allow for a more full hearing of the evidence.

Frederica Freyberg:

Well, speaking of that, if Senator McConnell does not allow testimony from witnesses, is that what the founding fathers, the framers, kind of had in mind for this process?

David Canon:

Well, the problem with the Constitution when it comes to impeachment is it doesn’t give us much of a road map. It really doesn’t give any detail in terms of how that trial will be conducted. So what we have basically is the precedent of the two earlier presidential impeachments of Andrew Johnson and Bill Clinton. And in both of those cases, we did have testimony from witnesses and it was more like a full trial where you would hear the evidence on both sides and then the Senate would decide. That really is more the governing sort of precedent, is the actual practices rather than the Constitution itself.

Frederica Freyberg:

We’ll see. Any telling how Chief Justice John Roberts will see his role? Because he is the presiding officer.

David Canon:

Right.

Frederica Freyberg:

But see his role when it comes to potentially breaking a 50-50 tie for and against the calling of witnesses?

David Canon:

Right and this is something a lot of people have been talking about the last couple of days is that what kind of role is he going to play? Again with our two prior examples of Andrew Johnson and Bill Clinton, in the first example of the Johnson impeachment, Chief Justice Chase was really very much opposed to Johnson. He made his views known. He did have multiple rulings. He did break ties, when ties came up. Whereas in the Clinton example, Chief Justice Rehnquist was very much on the opposite end of the spectrum. He was not that engaged in making critical decisions. Afterwards he quoted one of his favorite lines from a Gilbert and Sullivan opera, where he said, “I did nothing in particular and I did it rather well.” And he was kind of proud of that. And so some people think Roberts will err to that side of caution and not be very assertive. But he may be forced to take a position and that would be the 50-50 tie scenario that you just outlined, where right now if the vote was held today on witnesses, there’s a chances it could be, because we have three Republicans who’ve said they would like to see witnesses. That puts us right at 50. So the chief justice may have to break that tie one way or the other.

Frederica Freyberg:

All right. David Canon, thanks very much.

David Canon:

Good to be with you.