April 9, 2021 – The state election laws require municipal clerks or municipal election commissions to change the registration status of electors who may have moved, not the Wisconsin Election Commission (WEC), the Wisconsin Supreme Court has ruled (5-2).

In Zignego at al v. Wisconsin Elections Commission, 2021 WI 32 (April 9, 2021), a majority ruled that “the responsibility to change the registration of electors who may have moved out of their municipality is given to ‘the municipal clerk or board of election commissioners,’” rejecting an argument that this statute also applies to the WEC.

“To translate, a board of election commissioners is established in our high population cities and counties – at this point, only in the City of Milwaukee and Milwaukee County – to carry out the duties otherwise accomplished by municipal and county clerks everywhere else,” wrote justice Brian Hagedorn for the five-justice majority.

 “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.”

Thus, the plaintiffs could not compel the WEC to deactivate voters from voter rolls in 2019, because the WEC is not a local “board of election commissioners.”

Voters Challenge

Wis. Stat. section 6.50(3) requires “the municipal clerk or board of election commissioners” to “change the elector’s registration from eligible to ineligible status” if there is “reliable information” that the registered elector has moved outside of the municipality and fails to respond, within 30 days, to a notice to continue their registration.

In 2019, WEC received an annual “movers report” from a multi-state consortium – Electronic Registration Information Center, Inc. (ERIC) – designed to improve the accuracy of voter registration data.

ERIC’s “movers list” noted voters who may have moved or died. The WEC then sent notices to more about 230,000 voters listed on the report, as it had done so in the past.

The notices asked the voters to confirm their addresses so they could vote. Within two weeks of sending the notices, several suburban Milwaukee voters filed a complaint with the WEC, requesting the WEC deactivate voters who did not respond to the notices within 30 days under section 6.50(3), making them ineligible voters.

Ultimately, the plaintiffs – Timothy Zignego et al. – sought a writ of mandamus to compel the WEC to deactivate the voters who did not respond to the notices. The circuit court in Ozaukee County ordered the WEC to deactivate those voters as requested.

Immediate appeals followed and the WEC took no action, prompting the plaintiffs to file, in January 2020, a motion to hold in contempt three commissioners who voted not to comply with the mandamus order. The circuit found them in contempt.

But an appeals court stayed the contempt and mandamus orders, and ultimately reversed those orders. The Wisconsin Supreme Court granted review of the case.

5-2 Majority

In an opinion by Justice Brian Hagedorn – joined by Chief Justice Patience Roggensack, Justice Ann Walsh Bradley, Justice Rebecca Dallet, and Justice Jill Karofsky – the five-justice majority ruled that statue at issue is clear.

That is, section 6.50(3) – which refers to “the municipal clerk or board of election commissioners” when changing a voter’s status from eligible to ineligible – does not give the WEC a “positive and plain” duty to make those changes.

“In short, Zignego's argument that the Commission is required to carry out the mandates of § 6.50(3) is contrary to what the statute says because the statute assigns its duties to municipal election officials,” Justice Brian Hagedorn wrote.

“The Commission has no statutory obligation, and therefore no positive and plain duty, to carry out the requirements of § 6.50(3). The circuit court therefore erred by issuing a writ of mandamus ordering it to do so.”

Justice Hagedorn noted that Zignego’s primary argument, that the WEC is a “board of election commissioners” under section 6.50(3) “disregards nearly every foundational principle of statutory interpretation.”

WEC is required to examine registration records and mail notices to registered voters who have not voted in the previous four years, and change their registration status if they do not respond to continue their registration.

But section 6.50(3) specifically calls on the local municipal clerk or board of election commissioners to act upon reliable information that a registered elector has moved “outside of the municipality.”

The majority noted that the WEC cited section 6.50(3) when it sent notices to voters in 2017 and changed the voter registration status of thousands of voters in 2018.

“However, even if those actions were unlawful, the remedy for alleged executive overreach is not a court order to continue acting unlawfully,” Justice Hagedorn wrote.

“Simply because an agency took action in the past does not mean its actions were legal, nor would it provide authority for this court to mandate agency action that the law itself does not sanction. It is the statutory text, not agency practice, that determines what the law requires an agency to do.”

The majority largely upheld the appeals court decision, with modification, and remanded the case for dismissal.

Dissent

Justice Rebecca Bradley wrote a dissenting opinion, joined by Justice Annette Ziegler, concluding WEC has a “’positive and plain duty’ to fulfill its statutory responsibility to change the status of ineligible voters” when reading the statutes as a whole.

“The majority's circumscribed statutory interpretation leaves WEC off the hook for its violations of Wisconsin's election laws,” Justice Rebecca Bradley noted.

The dissenters noted that WEC had previously changed voter registration rolls after receiving ERIC data and sending notices to voters noted on the list.

But in 2019, Justice R. Bradley explained, WEC “decided to delay deactivation of these voters' registrations for up to two years, thereby knowingly permitting voters to cast ballots in multiple elections with invalid registrations.”

Justice R. Bradley acknowledged that section 6.50(3) refers to local municipal clerk or board of election commissioners, but that does not negate WEC from the equation since WEC has a statutory duty to compile and “maintain” an official registration list.

“[T]o ‘maintain’ the official registration list means WEC must ensure its accuracy,” she wrote in 22-page dissent. “An interpretation that permits WEC to escape its statutory obligation to ensure the accuracy of the voter rolls would be absurd.”

“In this case, WEC shirked its duty, flouted the circuit court's orders without consequences, and knowingly left ineligible voters on Wisconsin's voter rolls,” Justice R. Bradley concluded. “WEC has a duty to maintain and administer Wisconsin's voter registration list under both state and federal law.”