Wisconsin Judge Dismisses Challenge to the Accuracy of State’s Voter Roll
November 14, 2024
By: Freddy Parola
A lawsuit filed by three voters in Wisconsin Circuit Court seeking to remove nearly 150,000 people from voter rolls in the state less than two months before Election Day has been dismissed by Judge Timothy Witkowiak. The lawsuit was filed on September 30 and dismissed on October 28. In Eucke v. Wisconsin Elections Commission, three Milwaukee residents (Dennis Eucke, Justin Gavery, and Joe Nolan) alleged that a significant number of voter registrations were outdated because voters had permanently moved away from Wisconsin. They claimed the state has had years to correct the issue but have nonetheless failed to maintain the State’s voter roll properly. The plaintiff argued that leaving the voter roll as is would increase the risk of casting illegal votes by individuals whose voter registration is not adequately up to date.
The Help America Vote Act (HAVA) (2002) and the National Voter Registration Act (NVRA) (1993) are the two most significant federal statutes that control each state’s maintenance of its voter rolls. 52 U.S.C. § 21083 (HAVA) charges each state to “implement . . . a single, uniform, official, centralized, interactive computerized statewide voter registration list defined, maintained, and administered at the State level.” It also says, “that State shall remove the names of ineligible voters from the computerized list per State law.”
The power to administer elections is concentrated at the state level, and voter registration and roll maintenance are similarly left to each state. However, the federal government has guided the states. 52 U.S.C. § 20507 (NVRA) outlines the procedure to remove a person from a state’s voter rolls. This section of the NVRA requires a state to make a “reasonable effort” to remove names of voters who have either died or changed their address. The plaintiffs have alleged that Wisconsin has failed to make a “reasonable effort” to conform their voter rolls to the NVRA because their allegation is “supported by reliable data,” which was available to but not acted upon by Wisconsin. A state may remove a voter if they received change-of-address information from the Postal Service. § 20507 also limits when a state may remove a voter. If a state wants to implement a “program [with] the purpose of which is to remove the names of ineligible voters systematically,” they must complete it “not later than 90 days prior to the . . . general election for Federal office.” This procedure is inspired by Congress’s desire not to improperly or coercively remove an eligible voter, thereby disenfranchising a person wrongfully in the lead-up to an election.
The plaintiffs alleged that the State violated its statutorily mandated duty to maintain the voting roll under state law. § 6.50 requires Wisconsin to identify individuals who have not voted in the past four years and issue “notice of suspension of registration” unless they apply for “continuation of their registration within 30 days.” The plaintiffs sued the Election Commission to enforce this statute against the individuals they identified. Furthermore, the plaintiffs requested an emergency order from the Court to ensure “sufficient time to allow compliance in full prior to the November 5, 2024 election.” The lawsuit’s timing calls into question the good faith of the plaintiff’s intentions. The remedy was extraordinarily aggressive and likely impossible to implement with such limited time. Had the judge sided with the plaintiffs, the Election Commission would have had virtually no meaningful opportunity to carry out the order before Election Day or even early voting, which began on October 22. It is a desirable goal to maintain a perfect voter roll, but the inherent imminence of a tightly contested Presidential and Senate election in Wisconsin raises questions regarding the genuineness of the plaintiff’s claims.
The Wisconsin Elections Commission announced in 2023 that their four-year voter record maintenance was completed, but the plaintiff alleges that the decision was improper. The plaintiffs depend heavily on the United States Postal Services Coding Accuracy Support System to assert that “tens of thousands of errors” were present on the current voter roll. The plaintiffs analyzed 271,962 voters and alleged that nearly 150,000 registered voters are ineligible. The plaintiffs cross-checked state, city, and zip code and checked occupancy on street and apartment numbers.
While the evidence provided by the plaintiffs can serve as valuable pieces to help unclog voter rolls, they are imperfect and can result in flagging false positives. For example, the Electronic Registration Information Center (ERIC) uses the last four digits of social security numbers, which can deliver more trustworthy results. Wisconsin is an ERIC member. ERIC “help[s] states improve the accuracy of America’s voter rolls” by identifying four categories of ineligible voters who could be clogging up voter rolls: Cross-State Movers, In-State Movers, Duplicate registrations, and Deceased voters. Member states share their voter registration data every 60 days, and ERIC uses matching software to compare the registrations of each state to find voters who could be lawfully removed to ensure optimal voter roll maintenance.
This lawsuit led to the Black Leaders Organizing for Communities (BLOC), Souls to the Polls, and WISDOM intervening and requesting a motion to dismiss. The motion asserted that the case should be dismissed because the information provided by the plaintiffs is unreliable, and there are numerous procedural defects the plaintiffs failed to clear when bringing their lawsuit. The plaintiffs may seek to appeal the motion to dismiss, but any opportunity to be heard would come after Election Day.