In Zignego v. Wisconsin Elections Commission (2019AP2397/2020AP112), the Court of Appeals District IV overturned a circuit court order mandating the Wisconsin Elections Commission deactivate the registrations of Wisconsin voters who had recently moved and failed to timely apply for continuation of registration.

Background

Wis. Stat. § 6.50(3) provides that, if a municipal clerk or “board of election commissioners” receives information that voters have moved, it must notify the voters. If a notified voter fails to respond to the notice within 30 days, the municipal clerk or “board of election commissioners” is required to change the voter registration status to ineligible. At issue in this case is whether “board of election commissioners” refers to the Wisconsin Elections Commission.

The Wisconsin Elections Commission in 2017 received from a third-party data corporation a report on voters who may have moved. Based on that data, the Commission sent notices to those voters stating that they had 30 days to respond or their registration status would switch to ineligible. The Commission subsequently deregistered those individuals who did not respond to the notice.

After receiving another report on voters who may have moved in 2019, the Commission, citing worries about inaccurate data from the 2017 report, sent out a notice to those voters but declined to state the Commission would deregister voters who did not respond.

Subsequently the plaintiffs filed this lawsuit alleging that the Commission violated § 6.50(3) by not deregistering the voters who had not responded to the notice. The Commission argued § 6.50(3) did not apply, as the Commission is not a “board of election commissioners.”

The circuit court ruled in favor of the plaintiffs and issued a writ of mandamus ordering the Commission to deactivate the voters. When the Commission did not deactivate the voters, the court found the Commission in contempt of court. The Commission sought a petition to bypass the Court of Appeals, but the Supreme Court rejected the petition. The next day, the Court of Appeals granted the Commission’s appeal and issued a stay of the circuit court’s writ of mandamus and contempt order.

Court of Appeals Decision

The Court of Appeals agreed with the Commission that the term “board of election commissioners” in § 6.50(3) does not refer to the Commission. Wisconsin’s election statutes consistently refer to the Elections Commission as the “commission” (§ 5.025). At other places in statute, “board of election commissioners” refers to a body in Milwaukee that fills the duties of a municipal election clerk. The court found no reason to hold that “board of election commissioners” would mean something else in § 6.50(3). Even within § 6.50, the statutes use both terms: “commission” and “board of election commissioners.” Thus, assigning “board of election commissioners” to mean the Elections Commission in just one instance in these statutes would render one of the terms superfluous.

Furthermore, the court found that the Elections Commission is an independent agency, not a “board,” so “board of elections commissioners” could not refer to the Elections Commission. The court also dismissed plaintiffs’ arguments that the Legislature intended § 6.50(3) to require removal of moved voters and that the Commission itself at one point believed it had authority to deregister voters under § 6.50(3).

Thus, the Court of Appeals ordered the plaintiffs’ causes of actions dismissed and reversed the circuit court’s writ of mandamus and contempt order against the Commission.

Plaintiffs, represented by Wisconsin Institute for Law & Liberty, have filed a petition for review by the Wisconsin Supreme Court.