May 14, 2020
Why Are States So Important? Focus On: Voter Purging in General…and Wisconsin in Particular

Traditionally, it’s always been Republicans suppressing votes.”– Justin Clark

Well, he should know.

Clark, a senior political adviser & senior counsel to Trump’s Reelection Campaign, made this comment at a November 2019 meeting of the Republican National Lawyers Association’s Wisconsin chapter, as part of a larger discussion of GOP 2020 election strategy (spoiler: it’s not pretty). According to the advocacy group One Wisconsin Now, attendees included the state Senate’s top Republican and the Executive Director of the WI Republican Party.

“Let’s start protecting our voters,” Clark continues, as if this “protection” hadn’t started years ago. “Let’s start playing offense a little bit. That’s what you’re going to see in 2020. It’s going to be a much bigger program, a much more aggressive program, a much better-funded program,” “it” being “winning by any means.”

A word about Wisconsin: It’s a battleground state par excellence. From 2011–2019, Republicans held a trifecta (control of Governorship, State House, and Senate), which cracked last year with the election of a Democratic Governor. In 2016, Trump won the state by fewer than 23,000 votes. 23,000. With such thin margins, every vote cast by the state’s approximately 3.3 million voters Really Counts.

So how, exactly, does the party in power plan to “protect their voters?” By the GOP SOP: disenfranchising the opposition, state by state.

Truth: State Elections Matter

We here at Sister District Project believe, fervently, that state elections matter. From local issues (transportation, zoning laws) all the way up to the biggies (gun legislation, Medicaid expansion, environmental protections, reproductive rights), it’s our elected state legislators who pass the laws that affect us day-to-day and determine our quality of life.

Republicans agree with us. (Now there’s bipartisanship!) Over the past decade, Republicans nationally have quietly poured big bucks into state legislative races, resulting in GOP control of two-thirds of state legislatures. The party has cemented its power via gerrymandered state maps, creating a cycle where unfair elections lead to GOP overrepresentation in state government lead to regressive policies.
What breaks this cycle? Democratic voter turnout. And who votes predominantly Democratic? Voters of color. So the GOP has set about implementing voter-suppression tactics primarily aimed, as always in this country, at minority voters. In another example of unexpected bipartisanship, the Brennan Center for Justice agrees with Justin Clark: “Voting restrictions have almost exclusively been promoted and supported by Republicans.”

Ugly Tactics

These restrictions take many forms. Theoretically, at least, we no longer tolerate such Jim Crow-era travesties as poll taxes and literacy tests (although Florida’s ongoing efforts to defy voters’ will and make former felons’ voting rights contingent on fee payments sure look like a poll tax).

Instead, lawmakers are relying on subtler but no less onerous tactics. Since 2010, lawmakers in 25 states, including Wisconsin, have enacted new restrictions on voting — tightening voter ID laws, restricting voter registration drives, closing polling places, disseminating false information about voting deadlines, cutting early voting, and, of relevance here, purging voters.

A Word About — ugh — Purging

“Purging” is the unpleasant-sounding, often-flawed practice of cleaning up state voter rolls by removing registered voters’ names. Purges have risen sharply since 2013, when the US Supreme Court struck down an essential protection in the 1965 Voting Rights Act requiring states with a history of discrimination to obtain “preclearance” from the Department of Justice before implementing any changes in voting procedures.

Unsurprisingly, the median purge rate in former preclearance states has skyrocketed, but other states have not been shy about denying select residents the opportunity to vote. Overall, according to the Brennan Center, more than 17 million voters were purged from the rolls nationally between the 2016 presidential election and 2018 midterms.

To be clear, validly clean voter rolls are a positive. More than a positive — they’re vital. For candidates, voter rolls in essence are their voters, in that the lists of names are the only way to know exactly who the district’s constituents are. It’s why Sister District Project volunteers spend so much time phonebanking for our candidates — even when we reach wrong numbers, hang-ups, or “sorry, they no longer live heres” on the other end of the line, we’re doing our candidates a huge service by cleaning up their voter rolls and allowing them to focus their attention where it counts: on their real, live voters.

Technology as Progress (?)

One way candidates figure out who their voters are is through the use of electronic records. Of the two main voter-registration databases nationally, you’ve probably heard of the more notorious Interstate Voter Registration Crosscheck program, aka “Crosscheck,” which flags potentially duplicate voter records from participating states.

Fortunately, Wisconsin does not participate in Crosscheck. To the surprise of no one, the database disproportionately penalizes minority voters: in big states like California and Texas, many people share the same name and date of birth, with minority voters more likely to share names than white voters. According to a 2019 study by researchers at the University of Pennsylvania, Microsoft Research, and Stanford and Harvard Universities, Crosscheck’s error rate is close to 100%. For now, as with Voldemort, let us not speak of it again.

NB: Crosscheck was the baby of former Kansas Secretary of State and voter-suppression expert Kris Kobach, who will be running for the US Senate in 2020. Kansans, take note.

There is a better system out there, one in which Wisconsin does participate: the Electronic Registration Information Center (ERIC), a coalition of 29 states and DC that tries to keep voter rolls accurate by comparing voter registration information with records from state DMVs, the US Postal Service, and the Social Security Administration.

ERIC flags voters who file address changes or register vehicles at new addresses (a problem for people who might register their vehicle at their business address). Voters incorrectly removed from rolls can re-register online, at a Town Clerk’s office, or, in the several states where it’s allowed, at the polls on Election Day.
Slate’s Mark Joseph Stern calls ERIC “a reasonably accurate tool, unlike Crosscheck… useful but imperfect.”

Oh, Wisconsin.

In October 2019, in response to an ERIC-generated “Movers Report,” the Wisconsin Elections Commission sent letters to about 232,000 voters believed to have moved, asking them to update their registrations. The Commission planned to assess non-respondents case-by-case over the next 24 months, and if voters didn’t respond, they would be “deactivated” from the rolls in 2021 and required to re-register (as opposed to states such as Massachusetts, where “inactive” voters may still vote after showing a valid ID).

This grace period was too long for the conservative Wisconsin Institute for Law & Liberty (WILL), which launched a November 2019 lawsuit against the Wisconsin Elections Commission, arguing that state law required election officials to remove non-responsive voters from the rolls 30 days after the letters were mailed.

True, state law mandates that “upon receipt of reliable information,” Wisconsin must send an address-verification letter to voters suspected of moving, and must remove recipients from the voter rolls within 30 days of the mailing date if garnering no response.

But while the Commission rightly wants to fact-check each voter’s name before making a decision, WILL argues that the Movers Report on its own qualifies as sufficiently “reliable information” to toss all 232,000 voters off the rolls — ERIC’s inherent imperfection and inevitable “false positives” be damned.

Adding To The Chaos

… the Commission’s letters said nothing about a deadline or deactivation, meaning that non-responding recipients might not know they’ve been disenfranchised until they’re turned away at the polls on Election Day. Wisconsin is one of 21 states (plus DC) to allow Election Day registration, but registrants must provide proof of residence at the polls, which many people don’t bring with them.

And as Slate’s Stern notes, voters consistently disregard these kinds of notifications, often discarding them as junk mail; in 2017, for example, the Commission sent letters to 335,000+ people but only 6,153 returned their cards.

According to the Milwaukee Journal Sentinel, the state’s Democratic strongholds — Milwaukee (home to the largest African-American population in the state) and Madison (a diverse college town) — account for 14% of Wisconsin registered voters, but received 23% of the Commission’s letters.

In Milwaukee alone, officials estimate that more than one in ten voters could be affected by the 30-day deadline. According to Milwaukee Election Commission Executive Director Neil Albrecht, 600 of the city’s letter recipients were incorrectly flagged as having moved, while in an additional 2,000 cases, the voter’s surname matched that of the property owner, meaning the family most likely still resided at that address.

So What’s Next?

In December 2019, Circuit Judge Paul Malloy agreed with the plaintiffs and ordered the state to remove voters within 30 days of the letter-mailing. Never mind the upcoming November 2020 Presidential election; at this rate, 200,000+ voters may be dumped from the rolls before Wisconsin’s Judicial primary in February.

NB: Judge Malloy was appointed in 2012 by a Republican Governor and has been reelected since. His current term expires in 2021, at which point the seat will be up for election. Wisconsinites take note.

The state’s Democratic Attorney General Josh Kaul has appealed the decision and sought a stay on the order, alleging that the Commission’s letters violate voters’ Fourteenth-Amendment rights by not providing adequate notice of what voters needed to do to remain on voter rolls; not specifying the consequences for non-response; and not including a timeline for action. Kaul also wants the Commission to notify affected voters of pending removal from the rolls, and provide instructions on how to forestall the process.

NB: AG Kaul was elected in 2018; the next election for the position will occur in 2021. Wisconsinites take note.

WILL has counteracted by bypassing the appeals court and asking the state Supreme Court to take up the case directly. As of January 1, 2020, the Justices have not yet decided whether to take the case, but if they do, the Court’s solidly conservative 5–2 majority does not bode well for the thousands of voters who may find themselves turned away at the polls this year. (The Court majority will actually be 4–2, since Supreme Court Justice Daniel Kelly recused himself from the case, but the imbalance remains.)

NB: Wisconsin voters elect their Supreme Court Justices in non-partisan, statewide elections. Wisconsin’s judicial primary will be on Feb. 18, 2020, and the judicial general election on April 7, 2020. Wisconsinites take note.

As of December 31, 2019, the Commission is deadlocked. Unsurprisingly, the three Republican Commissioners want to purge the names wholesale, while the three Democrats want to retain them pending further verification. Stay tuned.

[Update: on January 14, 2020, the Wisconsin Court of Appeals paused the planned purge, pending further review. Fingers crossed.]

The Last Word: Vote

In a dissenting opinion in a 2018 Ohio voter-purging case, Supreme Court Justice Sonia Sotomayor recalls previous purging episodes across the country that “’sharply depressed turnout, particularly among blacks and immigrants.’”

“It is unsurprising in light of the history of such purge programs,” she writes, that they had “disproportionately affected minority, low-income, disabled, and veteran voters.”

The solution: VOTE IN STATE ELECTIONS. Elect impartial state judges. Elect fair state legislators. Elect state officials who, rather than concocting more ways to reduce access to the polls, will fight to preserve all citizens’ right to vote.

“Our democracy rests on the ability of all individuals, regardless of race, income, or status, to exercise their right to vote,” says Sotomayor. Let’s make it so.