(Graphic by COURIER/Denzel Boyd)
(Graphic by COURIER/Denzel Boyd)

A decision on the status of 130,000 voters is reportedly unlikely before the election.

The Wisconsin Supreme Court on Tuesday morning heard arguments in the conservative-led lawsuit that aims to remove 130,000 people from Wisconsin’s voter rolls.

The arguments took place with only 35 days remaining before the Nov. 3 presidential election, when all eyes will be on Wisconsin, a key swing state that President Donald Trump won in 2016 by a razor-thin margin of fewer than 23,000 votes. However, the state Supreme Court is unlikely at this point to rule on the purge before the election, according to the Associated Press.

The Wisconsin Institute for Law And Liberty (WILL), a conservative law firm, brought the suit against the Wisconsin Elections Commission last year and initially convinced an Ozaukee County judge to order the removal of what was then estimated to be more than 200,000 voters from the rolls. The total number of voters WILL seeks to purge is now 130,000. 

The Elections Commission last year sent a letter to the voters in question, saying a multi-state database, the Electronic Registration Information Center, or ERIC, indicated they may have moved. The letter gave them 30 days to a letter to confirm their address, but they did not respond. Thousands of those voters received the letters in error, but WILL says the Elections Commission still should have removed them from the rolls because they did not respond.

“WEC’s problem is the list isn’t perfect and they don’t want to deal with that,” WILL President Rick Esenberg said during arguments.

But it’s unclear whether the Elections Commission is legally required to purge the voters. State law appears to place the responsibility of deactivating voters on local clerks, and an appeals court agreed with that reading of the statutes in question when it struck the voter purge down in February.

“The statute at issue in this case does not apply, by its plain terms, to the Wisconsin Elections Commission,” said Attorney General Josh Kaul, who delivered arguments for the commission. “Second, there is no plain and positive duty to treat ERIC movers data as reliable or to use it for mass deactivations.”

Still, WILL brought the case to the state Supreme Court, on which conservative justices hold a 4-3 majority. The court is not guaranteed to side with WILL. Brian Hagedorn, a conservative justice elected to the court in 2019, has served as a surprise swing vote in several cases, including when he sided with the court’s liberal justices in May to unsuccessfully defend Gov. Tony Evers’ statewide safer-at-home order meant to slow the spread of the coronavirus pandemic and again when he cast the deciding vote in keeping Green Party presidential candidate Howie Hawkins off the Nov. 3 ballots.