The SCOW docket: On purging the voting lists

Hagedorn

Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them.  ​

The case: Zignego v. Wisconsin Elections Commission

Majority: Justice Brian Hagedorn (24 pages), joined by Justices Ann Walsh Bradley, Rebecca Dallet, Jill Karofsky, and Patience Roggensack

Dissent: Justice Rebecca Grassl Bradley (22 pages), ​joined by Justice Annette Ziegler

The upshot

Our election laws tell us how they will refer to the Commission: by use of the term "commission" (or occasionally "elections commission"). Wis. Stat. §5.025. The "board of election commissioners" refers to a different kind of entity under our laws, one whose province is local. See Wis. Stat. §§7.20, 7.21, 7.22. 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. 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.

The circuit court's contempt order against the Commission and several of its commissioners likewise must be reversed. 

Background

The issues in this case arose when the Commission received a "movers report" from the Electronic Registration Information Center, Inc. (ERIC), a multi-state consortium created to improve the accuracy of voter registration systems. This report identifies currently registered voters who may no longer be eligible to vote at their registered address because they either died or moved. After receiving the report, the Commission conducted internal vetting and, in October 2019, sent notices to approximately 230,000 Wisconsin voters who the report suggested may no longer reside at their registered address. These notices informed the recipients that they could affirm their address by: (1) doing so at myvote.wi.gov; (2) returning the attached postcard to their municipal clerk; or (3) voting at the next election....

Zignego...filed suit against the Commission and five of its commissioners seeking a declaration and temporary and permanent injunctive relief, or in the alternative, a writ of mandamus. The circuit court conducted a hearing on December 13, 2019, and orally ruled that a writ of mandamus would issue ordering the Commission to comply with Wis. Stat. § 6.50(3). The written mandamus order followed shortly thereafter compelling the Commission to "deactivate the registration of those electors who have failed to apply for continuation of their registration within 30 days of the date the notice was mailed...." 

The Commission, however, took no action to comply with the writ. Zignego followed with a motion asking the circuit court to hold the Commission and its commissioners in contempt. On January 13, 2020, the circuit court conducted a hearing and found the Commission and several commissioners in contempt. The court imposed, as a remedial sanction, a forfeiture of $50 per day against the Commission and a forfeiture of $250 per day against each of the three commissioners who voted to take no action to comply with the writ.

That same day, the Commission filed a notice of appeal with respect to the contempt order and moved for a stay. Also on the same day, this court denied Zignego's petition for bypass. The next morning, the court of appeals stayed both the contempt order and the writ of mandamus, explaining that the court's reasoning would be set forth in a subsequent order. A week later, the court of appeals issued its opinion and reversed the circuit court's writ of mandamus and contempt orders. Zignego petitioned this court for review, which we granted....

---

​The Guts

We begin in the same way the election statutes begin—— by defining who the main actors are in this delicate democratic dance. The statutes regularly refer to and largely define three primary actors for our purposes here: (1) a "municipal clerk"; (2) a "board of election commissioners"; and (3) "the commission...."

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. 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. In fact, this conjoined phrasing appears dozens of times in chapter 6 alone.

The final entity relevant for our purposes is the Wisconsin Elections Commission. It has a separate defined nomenclature located in Wis. Stat. §5.025. In chapters five through ten and 12 of the statutes, "'commission' means the elections commission." Hundreds of times in the chapters following, the legislature uses either "commission" or occasionally, "elections commission," to denote the Commission. Immediately following this definition, Wis. Stat. §5.05 extensively lays out various powers and duties of the Commission (other statutes add to this list)....Of some relevance here, the Commission is..."responsible for the design and maintenance of the official registration list" and "shall require all municipalities to use the list in every election...." 

Under Wis. Stat. §6.36(1)(a), the Commission "shall compile and maintain electronically an official registration list." But editing the list is a different matter. The laws specify that the list must "be designed in such a way that the municipal clerk or board of election commissioners of any municipality . . . may, by electronic transmission, add entries to or change entries on the list for any elector who resides in, or who the list identifies as residing in, that municipality and no other municipality." §6.36(1)(c). Again, all three entities are mentioned. The Commission maintains the statewide list, but the municipal clerk or board of election commissioners must be able to change the registration status for individuals within their municipality....

As these provisions make clear, Wis. Stat. § 6.50 sometimes directs the Commission to act, and other times it directs municipal officials to do so....

While additional statutory context could be considered to reinforce the same themes, it is time we turn our attention to the subsection at issue here, Wis. Stat. § 6.50(3), which provides in full:

Upon receipt of reliable information that a registered elector has changed his or her residence to a location outside of the municipality, the municipal clerk or board of election commissioners shall notify the ​elector by mailing a notice by 1st class mail to the elector's registration address stating the source of the information. All municipal departments and agencies receiving information that a registered elector has changed his or her residence shall notify the clerk or board of election commissioners. If the elector no longer resides in the municipality or fails to apply for 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. Upon receipt of reliable information that a registered elector has changed his or her residence within the municipality, the municipal clerk or board of election commissioners shall change the elector's registration and mail the elector a notice of the change. This subsection does not restrict the right of an elector to challenge any registration.... 

Zignego's primary argument in this case is that the Commission is a "board of election commissioners" under § 6.50(3). This argument disregards nearly every foundational principle of statutory interpretation. 

In short, according to the plain meaning supported by its statutory context, "board of election commissioners" under Wis. Stat. § 6.50(3) does not include the Commission. The Commission has no mandatory duties under this provision....

Wisconsin Stat. § 6.50(3) does not apply to the Commission; there is no credible argument that it does. Accordingly, the circuit court erred in granting a writ of mandamus based on an improper interpretation of § 6.50(3), and its contempt order cannot survive the reversal of the writ of mandamus. We affirm as modified the decision of the court of appeals, and remand the cause to the circuit court for dismissal.

Grassl Bradley

Dissent

For years, the Wisconsin Elections Commission (WEC) undertook responsibility for notifying voters of WEC's receipt of information indicating they had moved and therefore may need to register to vote using their new addresses. If a voter failed to confirm the validity of the registered address, WEC removed that voter from the rolls, in accordance with state law. In 2019, WEC decided to disregard the law and instead delay deactivation of ineligible voters for up to two years. The majority relieves WEC of its statutory obligations, determining that these duties actually belong to local election officials and not WEC. The majority's decision leaves the administration of Wisconsin's election law in flux, at least with respect to ensuring the accuracy of the voter rolls. 

The majority is correct that, pursuant to Wis. Stat. § 6.50(3), "municipal clerk[s] or board[s] of election commissioners" have a statutory obligation to change an elector's registration from eligible to ineligible status if an elector has moved. In reading the election statutes in isolation, however, the majority misses the broader picture: under the full statutory scheme of Wisconsin's election laws, WEC – the state's chief election commission – also has a statutory obligation to change the status of ineligible voters on the statewide voter registration list. 

Wisconsin Stat. § 5.05(15) makes WEC "responsible for the design and maintenance of the official registration list" statewide and § 5.05(2w) gives WEC "responsibility for the administration of chs. 5 to 10 and 12...." Reading these statutes as a whole reveals WEC's "positive and plain duty" to fulfill its statutory responsibility to change the status of ineligible voters; therefore, the circuit court properly issued a writ of mandamus – a conclusion that should come as no surprise to WEC considering it has routinely complied with this duty for years. The majority's circumscribed statutory interpretation leaves WEC off the hook for its violations of Wisconsin's election laws. I respectfully dissent....

As documented in the record in this case, in 2017 ERIC sent WEC a maintenance report showing a list of registered voters for whom ERIC received data indicating they had moved and were no longer eligible to vote at their listed addresses. After reviewing this list to ensure its accuracy, WEC sent notices to those voters asking them to confirm whether they still lived at their registered addresses. With respect to voters who failed to confirm their addresses, WEC marked their registration records as ineligible and required those individuals to re-register before voting again. These actions demonstrate that WEC understood and embraced its duty under Wisconsin's election laws to maintain the voter rolls. 

In 2019, ERIC sent WEC another maintenance report with a list of registered voters who ostensibly had moved. Again, WEC vetted this information to ensure its accuracy and subsequently sent notices to the affected voters. This time, however, for voters who did not confirm whether they still lived at their registered addresses, WEC did not promptly change its records to reflect these voters' ineligibility. Instead, 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. Wisconsin's applicable election laws had not changed. 

As a general matter, Wis. Stat. § 6.36(1)(a) requires WEC "to compile and maintain electronically an official registration list." (Emphasis added). Wisconsin Stat. § 5.05(15) expressly mandates that WEC "is responsible for the design and maintenance of the official registration list under s. 6.36." (Emphasis added). Although Wisconsin courts have never directly interpreted this statute, its interpretation is dispositive in this case. Indeed, "to maintain" is more than just an obligation to create a registration list or to electronically insert data; it is a duty to "maintain" its accuracy. The ordinary meaning of "to maintain" is to "to keep in a condition of good repair or efficiency."

Applying the legislature's plain language, to "maintain" the official registration list means WEC must ensure its accuracy. An interpretation that permits WEC to escape its statutory obligation to ensure the accuracy of the voter rolls would be absurd....

Notwithstanding Wis. Stat. § 6.50(3)'s applicability to municipal clerks and board of election commissioners, WEC once recognized its own, independent obligation under state and federal law to ensure the accuracy of Wisconsin's voter rolls....

WEC decided to rewrite the law to give such voters "between 12 months and 24 months" after the notification was sent. Failing to follow the legislature's mandate – as WEC did in this very case – opens the door to voter fraud, erodes "[c]onfidence in the integrity of our electoral processes, . . . drive[s] honest citizens out of the democratic process, and breed[s] distrust of our government...."  

In addition to contaminating Wisconsin's elections, WEC's refusal to obey the circuit court's order harmed the integrity of Wisconsin's justice system. The court of appeals' stays in this case excused WEC's allegedly contemptuous conduct and signaled to the public that no one is bound by a circuit court order. Defiance of court orders, permitted by the court of appeals and now condoned by this court, threatens the integrity of our entire judicial system. ...

---