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Wisconsin has passed statutory requirements designed to maintain the accuracy of its voter registration list and keep it up-to-date. These laws are exceedingly common among the states, and even required by federal law in some cases.[1] However, they have also been the source of significant litigation.

One mechanism Wisconsin uses to update its voter registration records is contacting voters when officials receive “reliable information” that a voter might have moved out of his or her municipality. Wisconsin law requires, in relevant part, that:

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 . . . . 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.[2]

To assist with maintaining the accuracy of the state’s voter files, municipal clerks and boards of election commissioners in Wisconsin are seemingly required to take action when they receive reliable information that a registered voter has moved out of their municipality. However, in State ex rel. Zignego v. Wisconsin Elections Commission (Zignego), the Wisconsin Supreme Court held that Wisconsin law does not impose a “positive and plain” duty on the Wisconsin Elections Commission (the Commission) when it receives similarly reliable information that a registered voter has moved.[3] Rather, the court determined that the Commission—the State body with broad responsibility to administer Wisconsin’s election statutes and to design and maintain the official registration list—was distinct from the local boards of election commissioners referenced in Wisconsin’s list maintenance statute.

In Zignego, the Commission received a “movers report” from the Electronic Registration Information Center, Inc. (ERIC)—a multi-state private consortium designed to improve the accuracy of voter rolls—which identifies registered voters who may have moved from the addresses associated with their voter registrations.[4] After receiving the report, the Commission conducted its own internal vetting and identified approximately 230,000 Wisconsin voters who may have moved from their registration addresses and sent a letter to each with instructions on how to affirm their address.[5] When the Commission took no further action to remove non-responsive voters from the voter registration system, a group of registered voters filed suit seeking to compel it to act.

The trial court issued an order instructing the Commission to remove non-responsive voters, which the Wisconsin Court of Appeals reversed. In a 5-2 decision, the Wisconsin Supreme Court affirmed and modified the Court of Appeals’ decision.[6] Beginning with the premise that “the judicial branch ordinarily does not order the executive branch to do its job,” the Court declined to order the Commission to remove voters from the state’s voter list because it determined that the Commission had no “positive and plain” duty to do so under the facts at issue.[7]

The Wisconsin Supreme Court held that, under Wisconsin law, “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.’”[8] The Zignego petitioners, requesting a writ of mandamus to require the Commission to act, proposed that the Commission is a “board of election commissioners” under the statute.[9] However, applying principals of statutory interpretation that instruct a court to look to the language of the statute as well as its statutory context and structure, the Wisconsin Supreme Court determined that this was “plainly incorrect.”[10] As the court determined, Wisconsin’s election statutes refer primarily to three actors: “(1) a ‘municipal clerk’; (2) a ‘board of election commissioners’; and (3) ‘the commission.’”[11]

In describing these three actors and their different roles, the Zignego court explained that boards of election commissioners are established in Wisconsin’s most populous cities and counties to carry out the duties otherwise performed by the municipal or county clerk. In fact, the Court described “that the phrase ‘municipal clerk or board of election commissioners’ appears in tandem all over [Wisconsin’s] election statutes.”[12]

After delineating the separate actors, the majority opinion highlights the different role each plays in Wisconsin election administration and maintenance of the state’s voter registration list. In profiling their divergent roles, the Zignego court concluded that each of the three primary actors is given different responsibilities under the election code. Ultimately, the court concluded that, “according to the plain meaning supported by its statutory context, ‘board of election commissioners’ under [relevant Wisconsin law] does not include the Commission.”[13] Given that the Zignego petitioners did not establish the Commission’s positive and plain duty to maintain Wisconsin’s voter list in this particular way, the court declined to impose the “extraordinary legal remedy” of mandamus.[14]

The court did not accept any of the Zignego petitioners’ counterarguments. First, the petitioners asserted that the Wisconsin law requiring the chief election officer to enter into a membership agreement with ERIC and to comply with the terms of such agreement demanded a different result. However, the court concluded that the membership agreement with ERIC only required the Commission to initiate contact with voters whose records were deemed inaccurate.[15] Next, the Zignego petitioners claimed that, since the Commission had previously changed the registration of voters who did not respond to a similar notice sent in 2017 in conjunction with a prior report from ERIC, it must do so again in this case. Without deciding whether the Commission’s past actions were lawful, the court determined that “[i]t is the statutory text, not agency practice, that determines what the law requires an agency to do.”[16] Finally, the court rejected an argument that any reading of the relevant statute which did not require the Commission to change the registration status of voters when it received information that their address may have changed would violate federal law. Although federal law requires implementation of a centralized voter registration system, the court determined nothing within the law “precludes assigning local officials responsibility to make certain changes to the list.”[17]

Writing in dissent, Justice Rebecca Bradley, joined by Justice Annette Ziegler, did not disagree with the court’s answer to the statutory interpretation question.[18] Instead, the dissenting justices argued that the Commission had a broader duty to maintain the state’s voter rolls. Implicit in that duty, according to the dissent, was the “obligation to change the status of ineligible voters on the statewide voter registration list.”[19] Citing the Commission’s past practice of marking voters ineligible in conjunction with previous reports from ERIC, the dissenting justices took the view that the Commission had historically demonstrated an understanding and embrace of its duty to maintain Wisconsin’s voter rolls.[20] Emphasizing the Commission’s duty to “maintain” the state’s voter registration files, the dissent pressed that it was not sufficient for the Commission to merely create and insert data into the registration list, but that it must also work to keep the list “in a condition of good repair or efficiency.”[21]

Rather than view the relevant statutory provision as one means for local officials to maintain the voter registration rolls, separate and apart from the Commission’s overarching duty to do so, the dissent viewed these two duties as being inextricably intertwined. As Justice Bradley put it, if the Commission “receives reliable information from ERIC that a voter’s address information is invalid . . . and in response [the Commission] does nothing, [the Commission] thereby fails to ‘maintain’ this list in any substantive regard.”[22] The dissent discerned the Commission’s duty to maintain accurate lists by referencing not only Wisconsin’s election code, but also its agreement with ERIC, which required initiating contact with voters suspected of having out-of-date voter registration information “in order to correct the inaccuracy or . . . inactivate or update the voter’s record.”[23]

This case demonstrates the tensions inherent in states’ efforts to devise a method for maintaining accurate voter files. While federal law imposes a floor to a state’s attempts to keep up-to-date voter records, some discretion is left to each state in how to manage its voter rolls.[24] In Wisconsin, the state legislature assigned some role in that process to local election officials. But to what extent does such a delegation override or negate the state government’s broad obligation to maintain accurate records? In this case, the court determined that the state statutory provision at issue spoke to a particular way for local officials to participate in Wisconsin’s voter list management and did not impose any independent duty on state officials. However, even in a case like this, does the state’s broad duty to maintain accurate voter rolls require it to at least ensure that local officials who have been delegated authority to participate in that process are carrying out their obligations? Litigation will continue to define the appropriate scope of a state’s efforts to keep its voter records up-to-date, and states will need to adapt their attempts to maintain accurate voter rolls in response to court decisions.

 

[1] Voter List Accuracy, National Conference of State Legislatures (Mar. 20, 2020), https://www.ncsl.org/research/elections-and-campaigns/voter-list-accuracy.aspx.

[2] Wis. Stat. Ann. § 6.50(3) (emphasis added).

[3] State ex rel. Zignego v. Wis. Elections Comm’n, 2021 WI 32, ¶ 1.

[4] Id. at ¶ 7.

[5] Id.

[6] Id. at ¶ 44. After determining that the Court of Appeals’ opinion expressed views on issues that were beyond what was necessary to resolve the case, the Wisconsin Supreme Court modified the Court of Appeals’ opinion to exclude certain language. In particular, the Court of Appeals’ opinion was modified by withdrawing language that decided the issue of whether the information the Commission received from ERIC was “reliable” and whether the Commission’s past actions in removing voters upon learning information regarding a change in address were lawful. See id. at ¶ 44, n.19.

[7] Id. at ¶¶ 3-4.

[8] Id. at ¶ 4.

[9] Id.

[10] Id. at ¶¶ 4 and 12.

[11] Id. at ¶ 14.

[12] Id. at ¶ 17.

[13] Id. at ¶ 37.

[14] Id. at ¶¶ 38-39. The Court also reversed a contempt order issued by the trial court, determining that because the writ of mandamus was issued in error the contempt order had no proper basis. Id. at ¶ 43.

[15] Id. at ¶ 31.

[16] Id. at ¶ 32.

[17] Id. at ¶ 35.

[18] State ex rel. Zignego v. Wis. Elections Comm’n, 2021 WI 32, ¶ 46 (Bradley, J., dissenting).

[19] Id.

[20] Id. at ¶ 49.

[21] Id. at ¶ 53 (citing Maintain, The American Heritage Dictionary (5th ed. 2011)).

[22] Id. at ¶ 54.

[23] Id. at ¶ 56 (emphasis in original).

[24] See, e.g., 52 U.S.C. §§ 20507(a)(4) and 21083(a)(4); see also Husted v. A. Phillip Randolph Inst., 138 S. Ct. 1833, 1839 (2018) (explaining that while the National Voter Registration Act “is clear about the need to send a ‘return card’ (or obtain written confirmation of a move) before pruning a registrant’s name, no provision of federal law specifies the circumstances under which a return card may be sent. Accordingly, States take a variety of approaches.”).