Here & Now

WILL Sues State Elections Agency Over Voter Roll Maintenance

Frederica Freyberg:

Now to election news and a controversy over voting rolls. Nearly a quarter million Wisconsin voters this fall got letters asking whether they had moved under provisions of the National Election Registration Information Center, or ERIC. If those voters don’t respond, they get removed from the voting rolls. The State Elections Commission plans to purge the unresponsive voters after April 2021. But a lawsuit filed last month seeks to remove the voters 30 days after receipt of the mailing. In the midst of all of this, the commission is asking the state Legislature to establish specific procedures or grant election officials rule-making authority to decide. These legal questions around voter eligibility come less than a year from the presidential election that has Wisconsin pegged as the most important electorate in the nation. The chair of the Wisconsin Elections Commission is Dean Knudson and he joins us now from New Richmond. Thanks very much for being here.

Dean Knudson:

Glad to be here.

Frederica Freyberg:

So, again, the Elections Commission would maintain the voters who got the movers mailing on the active poll list until after the April 2021 election. Why so long?

Dean Knudson:

Well, the 2015 law that made Wisconsin a member of ERIC provided no specific direction or authority to the commission for how we would handle these voters that are identified as possibly moved. The movers’ list has been now handled by administrative policy set by the Elections Commission. We’ve decided that this year we sent these over 200,000 postcards. If anyone received one of those, they should go to myvotewi.gov and review and correct their registration as needed. But without any statutory direction or authority, we’ve come up with a system where after that mailing is received, these voters will still be able to come to the polls, but when they arrive to vote, their spot on the poll list will be demarcated that says they’re on that movers’ list. They’ll be asked, did you move? And told that by voting and by signing that poll list that they are affirming that they have not moved and they still live at that address. We feel like this completely complies with all state laws. Very confident in that. And I think it will provide uniformity across the state, which is something we didn’t have in 2017 when some local officials used their local control and prerogative to want to reactivate the voters that had been inactivated on the movers’ list.

Frederica Freyberg:

But meanwhile, this lawsuit against the commission would deactivate such voters after 30 days. Is there something wrong with that, in your mind?

Dean Knudson:

Well, I’m pretty confident that the lawsuit — that the commission has followed the law. The will lawsuit claims that the commission has the authority and a mandate to inactivate, but we don’t find either of those in the statutes. For four-year voter maintenance, sections one and two of the law you referenced deal with that and specifically say that there will be a mailing. After 30 days, they’re inactivated. Section three doesn’t mention the Elections Commission at all. It only gives that authority to the local clerks to do inactivation. So because we tried to do it that way in 2017, it wouldn’t hold up. We need something that’s uniform. And we really need guidance from the Legislature.

Frederica Freyberg:

Well, meanwhile, the group that’s filed the lawsuit says that the Elections Commission is putting Wisconsin’s election integrity at risk. Is what you’re doing likely to lead to fraudulent voting?

Dean Knudson:

So everyone that’s on that list is a registered voter. When they arrive at the poll, they won’t vote unless they affirm and swear by signing that poll list that they still live at that address where they’re registered. In most cases, they actually did move. And in 2017, we found that the false positive match rate ran around 6% to 7%. This time, we expect maybe it will be down to 3% or something in that neighborhood. Time will tell. So far, since the mailing went out, about a half a percent have gone in and said, hey, we do actually still live here. We were a false positive match on the ERIC list match. This is why it would be so helpful to have specific statutory guidelines and authority, which we don’t have. This isn’t the only area, Frederica. The 2015 law also didn’t deal with another part of ERIC, which deals with when ERIC finds that a voter may have voted in two different states in the same election, the 2015 law was completely silent on that as well. The Elections Commission has decided that when we get evidence that that may have happened, we’re going to look through that evidence and make criminal referrals when the evidence supports that. We will not tolerate voter fraud in Wisconsin.

Frederica Freyberg:

Haven’t you heard from the Legislature on this and they’ve said, yeah, go ahead and follow the statute that the lawsuit cites?

Dean Knudson:

Well, I received a letter yesterday from the two original co-authors of the 2015 bill, two state senators, saying that, well, you should follow the section of the law that deals with the four-year list maintenance. But this isn’t four-year list maintenance. And so we really do need to have the Legislature get involved. In absence of that, I welcome personally — not speaking for the commission, but personally as one member of the commission, I welcome the lawsuit if it will help bring clarity. But I suspect it will not because I think the judge will look at the letter of the law and say, hey, you have no authority right now to do that inactivation.

Frederica Freyberg:

All right. We need to leave it there. There is a court hearing on this next Friday. Dean Knudson, thanks very much for joining us.

Dean Knudson:

Thanks for having me.

Frederica Freyberg:

As mentioned, a lawsuit filed against the Elections Commission last month seeks to remove unresponsive voters 30 days after receipt of the mailing. The lawsuit was filed by the Wisconsin Institute for Law and Liberty. Rick Esenberg is the president and general counsel of the Institute. He joins us from Milwaukee. Thanks very much for doing so.

Rick Esenberg:

Thank you for having me on.

Frederica Freyberg:

Why did you file a lawsuit to deactivate voters who receive this “movers mailing” and don’t act after 30 days?

Rick Esenberg:

This is really about following the law. The Legislature has decided that it’s important for our voter rolls to be accurate, both for purposes of efficient election administration and for the prevention and the possibility of fraud. So it has told the Wisconsin Election Commission that if it has reliable evidence that someone has moved from the address at which they’re registered, that there’s a procedure to be followed. These individuals are to be sent a postcard. If they don’t return the postcard within 30 days, their registration is deactivated. This doesn’t mean they can’t vote, because here in Wisconsin, of course, you have same-day registration. And so if someone goes to the polls to vote and they’re not registered, they can re-register and cast a ballot.

Frederica Freyberg:

So the Elections Commission, as we know, wanted to give these people until April 2021. What’s the danger of keeping voters active even if they have to re-register at the polls?

Rick Esenberg:

Well, I think there are two things. First of all, the determination of how you should go about maintaining the rolls and when you should deactivate someone’s registration is a determination for the Legislature. And the Legislature has passed a law which specifies this period of removal for failure to return a postcard. If we don’t like that, administrative agencies like the Election Commission can’t simply ignore that. They would have to go to the Legislature and ask them to change the law. So the first concern is rule of law. Now, I think the reason that the Legislature has done this is that over time — and this is not a problem only in Wisconsin, but nationally — our voter rolls have become quite inaccurate. You know, there are estimates that one in eight registrations are outdated. This creates problems with election administration, and it also creates the potential for fraud, in the sense that there are many people who are listed as being registered at a particular address who can request absentee ballots or absentee ballots can be requested in their name. So our Legislature has determined that we ought to do what we can, take reasonable steps to ensure that the rolls are accurate.

Frederica Freyberg:

Let me talk about that statute for a minute, which you cite, which says if the elector no longer resides in the municipality or fails to apply for the continuation of registration within 30 days of the date the notice is mailed, the clerk or board of election commissioners shall change the elector’s registration from eligible to ineligible status. But the commission tells me that that statute applies to municipal clerks and the city of Milwaukee and doesn’t define reliable information about address changes. What about that argument?

Rick Esenberg:

There are two issues there. One is the applicability of the statute. Now, the Legislature enacted and deputized the Wisconsin Election Commission to maintain a statewide registration list a number of years ago. And it is nonsensical to suppose that the Legislature, having given this responsibility to the Wisconsin Election Commission, doesn’t intend that the Election Commission comply with all the various obligations that are imposed on election officials in maintaining that roll. So essentially for the Election Commission to say that the law doesn’t apply to them means that they have somehow exempted themselves from everything that the statute says about how those rolls are to be maintained.

Frederica Freyberg:

Let me just cut in here a minute and ask what you think of having the Legislature weigh in on this now and offer guidance on specific procedures as the Elections Commission is now seeking in the midst of all of this?

Rick Esenberg:

Right. In the midst of all this, the Election Commission has informed the court that they’re going to ask the Legislature for guidance. The Legislature provided that guidance yesterday and told the Election Commission that the law couldn’t be clearer. That they ought to follow the law as it’s been written until such time as the Legislature changed it. I don’t think it’s wrong to impose some obligation on voters to respond to a notification like this. And, again, if they don’t respond in the notification, because we have same-day registration, they won’t be denied the opportunity to vote. They’ll simply have to re-register at the polls. Because we have photo ID, virtually every voter will have the documentation necessary to re-register.

Frederica Freyberg:

All right. We need to leave it there. Rick Esenberg, thanks very much.

Rick Esenberg:

Thank you.