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RECEIVED
STATE OF WISCONSIN

02-04-2020

COURT OF APPEALSCLERK OF COURT OF APPEALS
OF WISCONSIN

DISTRICT IV
Case No. 19AP2397, 20AP0112
STATE OF WISCONSIN ex rel.
TIMOTHY ZIGNEGO, DAVID W. OPITZ,
and FREDERICK G. LUEHRS, III,
Plaintiffs-Respondents,
v.

WISCONSIN ELECTIONS
COM1v1ISSION, MARGE BOSTELMANN,
JULIE GLANCEY, ANN JACOBS, DEAN
KNUDSEN and MARK THOMSEN,
Defendants-Appellants.
APPEAL FROM A FINAL ORDER
OF THE OZAUKEE COUNTY CIRCUIT COURT,
THE HONORABLE PAUL V. MALLOY, PRESIDING

BRIEF AND APPENDIX OF
DEFENDANTS-APPELLANTS
JOSHUA L. KAUL
Attorney General of Wisconsin

KARLA Z. KECKHAVER
Assistant Attorney General
State Bar #1028242
STEVEN C. KILPATRICK
Assistant Attorney General
State Bar #1025452
COLIN T. ROTH
Assistant Attorney General
State Bar #1103985
Attorneys for Defendants-Appellants

 Case 2019AP002397

Brief of Appellants

Wisconsin Department of Justice
Post Office Box 785 7
Madison, Wisconsin 53707-7857
(608) 264-6365 (KZK)
(608) 266-1792 (SCK)
(608) 264-6219 (CTR)
(608) 267-2223 (Fax)
keckhaverkz@doj .state.wi. us
kilpatricksc@doj .state.wi. us
rothct@doj .state. wi. us

Filed 02-04-2020

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TABLE OF CONTENTS
Page
INTRODUCTION ..................................................................... 1
ISSUES PRESENTED ............................................................. 2
STATEMENT ON ORAL ARGUMENT AND
PUBLICATION ........................................................................ 2
STATEMENT OF THE CASE ................................................. 3

I.
Statutory scheme ................................................. 3
II.
Relevant factual background ............................... 5
III. Litigation history ................................................. 7
SUMMARY OF THE ARGUMENT ........................................ 9
STANDARD OF REVIEW ..................................................... 11
ARGUMENT........................................................................... 11

I.

Plaintiffs are not entitled to a writ
of mandamus...................................................... 11
A.

Mandamus was improper
based on Wis. Stat. § 6.50(3)'s
"reliable
information"
standard and also because
Plaintiffs have no right to use
that
statute for
mass
deactivations ............................................. 13
1.

Wisconsin
Stat.
§
6.50(3)
requires
a
judgment-based
determination about a
particular voter. ............................. 13

2.

Wisconsin
Stat.
§
6.50(3) provides no
statutory
right,
or
standing, for Plaintiffs'
challenge......................................... 17

l

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Page

IL

B.

In addition, the Commission
has no positive and plain duty
under Wis. Stat. § 6.50(3)
because that statute does not
apply to it.................................................. 20

C.

The misreading of the statute
creates additional problems ..................... 25
1.

The circuit court writ
conflicts
with
the
October 2019 mailing..................... 25

2.

The circuit court writ
was
overbroad
in
additional ways .............................. 26

The writ of mandamus cannot form
the basis for a contempt finding........................ 27

CONCLUSION ....................................................................... 31

11

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Page

TABLE OF AUTHORITIES
Cases
Ash Park, LLC v. Alexander & Bishop, Ltd.,
2010 WI 44, 324 Wis. 2d 703, 783 N.W.2d 294 ......................... 31
Beres v. City of New Berlin,
34 Wis. 2d 229, 148 N.W.2d 653 (1967) ......................... 12-13, 17
Carney v. CNH Health & Welfare Plan,
2007 WI App 205, 305 Wis. 2d 443, 740 N.W.2d 625 .......... 27-28
Dames & Moore v. Regan,
453 U.S. 654 (1981) .................................................................... 23
Frisch v. Henrichs,
2007 WI 102, 304 Wis. 2d. 1, 736 N.W.2d 85 ............................ 27
In re Adam's Rib, Inc.,
39 Wis. 2d 741, 159 N.W.2d 643 (1968) ..................................... 27
Joint Sch. Dist. No. 1 v. Wis. Rapids Educ. Ass'n.,
70 Wis. 2d 292, 234 N.W.2d 289 (1975) ..................................... 27
Koschkee v. Taylor,
2019 WI 76, 387 Wis. 2d 552, 929 N.W.2d 600 ................... 23-24
Krier v. Vilione,
2009 WI 45,317 Wis. 2d 288, 766 N.W.2d 517 ......................... 11
Kuechmann v. Sch. Dist. of LaCrosse,
170 Wis. 2d 218,487 N.W.2d 639 (Ct. App. 1992) .................... 19
Lake Bluff Hous. Partners v. City of South Milwaukee,
197 Wis. 2d 157,540 N.W.2d 189 (1995) ................................... 12
Law Enft Standards Bd. v. Vill. Of Lyndon Station,
101 Wis. 2d 472, 305 N.W.2d 89 (1981) ............................... ll-12
League of Woman Voters of Wis. v. Evers,
2019 WI 75, 387 Wis. 2d 511, 929 N.W.2d 209 ......................... 11
Lagerquist v. Bd. of Canvassers for Town of Nasewaupee,
150 Wis. 2d 907, 442 N.W.2d 551 (Ct. App. 1989) .............. 18-19
Milwaukee Deputy Sheriffs Ass'n v. City of Wauwatosa,
2010 WI App 95, 327 Wis. 2d 206, 787 N.W.2d 438 .................. 17
S.D. Realty Co. v. Sewerage Comm 'n of City of Milwaukee,
15 Wis. 2d 15, 112 N.W.2d 177 (1961) ....................................... 18
ill

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Page
State v. Champlain,
2008 WI App 5, 307 Wis. 2d 232, 744 N.W.2d 889 .............. 13, 15
State v. Dickson,
53 Wis. 2d 532, 193 N.W.2d 17 (1972) ....................................... 28
State ex rel. Kalal v. Circuit Court for Dane Cty.,
2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110 ................... 12, 21
State ex rel. Marberry v. Macht,
2003 WI 79, 262 Wis. 2d 720, 665 N.W.2d 155 ......................... 12
State ex rel. N.A. v. G.S.,
156 Wis. 2d 338, 456 N.W.2d 867 (Ct. App. 1990) .................... 11
Town of Baraboo v. Vill. of W. Baraboo,
2005 WI App 96, 283 Wis. 2d 479, 699 N.W.2d 610 .................. 17
Vill. of Trempealeau v. Mikrut,
2004 WI 79, 273 Wis. 2d 76, 681 N.W.2d 190 ........................... 11
Voces De La Frontera, Inc. v. Clarke,
2017 WI 16, 373 Wis. 2d 348, 891 N.W.2d 803 ......................... 12
Welytok v. Ziolkowski,
2008 WI App 67, 312 Wis. 2d 435, 752 N.W.2d 359 .................. 28

Statutes
Wis. Stat. § 5.025 ...................................................................... 21-22
Wis. Stat. § 5.05 ................................................................................ 3
Wis. Stat. § 5.05(1e)........................................................................ 31
Wis. Stat. § 5.05(15) ............................................................. 3, 23-24
Wis. Stat. § 5.06(8), (9) ................................................................... 19
Wis. Stat. § 6.10(1) ......................................................................... 15
Wis. Stat. § 6.10(2)-(13) ................................................................. 15
Wis. Stat. § 6.10(5) ......................................................................... 15
Wis. Stat. § 6.22(4)(1) ...................................................................... 14
Wis. Stat. §§ 6.275 and 6.56(3) ...................................................... 23
Wis. Stat. §§ 6.32(2), (4) ................................................................. 14
Wis. Stat. § 6.36(ae).......................................................................... 5
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Page
Wis. Stat. § 6.36(1) ...........................................................................3
Wis. Stat. § 6.36(1)(ae) ..................................................................... 5
Wis. Stat. § 6.36(I)(b), (l)(c) ....................................................... 3, 24
Wis. Stat. § 6.325 .................................................................. 4, 16, 18
Wis. Stat. § 6.48 ...................................................................... 4, 5, 18
Wis. Stat. § 6.48(1)(b) ..................................................................... 19
Wis. Stat. § 6.50................................................................ 20, passim
Wis. Stat. § 6.50(1) ..................................................................... 3, 22
Wis. Stat. § 6.50(1)-(2) ............................................................. 22, 24
Wis. Stat. § 6.50(2) ............................................................... 3, 22, 29
Wis. Stat. § 6.50(2g), (7) ........................................................... 22- 23
Wis. Stat. § 6.50(3) ............................................................. 1, passim
Wis. Stat. § 6.86(2)(b) ..................................................................... 14
Wis. Stat. § 6.87(3)(b) ..................................................................... 14
Wis. Stat. § 7.08 .............................................................................. 21
Wis. Stat.§ 7.20 .............................................................................. 21
Wis. Stat. § 7.20(1) ............................................................... 3, 21, 24
Wis. Stat. § 7 .20(2) ......................................................................... 21
Wis. Stat. § 7 .20(2)-(3) ................................................................... 21
Wis. Stat. §§ 15.02(2), 15.61(1)(a)l.-6...........................................21
Wis. Stat. § 15.07............................................................................ 22
Wis. Stat.§§ 15.57-15.94 ............................................................... 22
Wis. Stat. §15.61 ............................................................................. 22
Wis. Stat. § 227.57 .......................................................................... 19
Wis. Stat. § 785.0l (l)(b) ................................................................. 27
Wis. Stat. § 785.01(3) .....................................................................27

V

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INTRODUCTION
Three Wisconsin voters filed this lawsuit seeking
deactivation of the registrations of over 200,000 voters based
on one source of information indicating that these voters may
have moved from their voting residences. That effort is flawed
for multiple reasons, including basic statutory ones. The
statute that Plaintiffs sought to use-Wis. Stat. § 6.50(3)has no application to their mass deactivation effort. It is
triggered only by "reliable information" that a particular
voter has moved outside a municipality. However, these
proceedings examined no individual voter's circumstances, at
all, but rather the circuit court adopted wholesale a single
database-called ERIC-that is known not to always be an
accurate indicator of whether a person has changed her voting
residence. The "reliable information" statute cannot apply to
these circumstances.
Much less do Plaintiffs have a right to seek
mass-deactivation under it here. Rather, where individual
electors like Plaintiffs seek to challenge another elector's
registration, they must prove it beyond a reasonable doubt in
a fact-finding proceeding before a local body.
These are not the only fundamental mismatches with
the statute. Wisconsin Stat. § 6.50(3), by its plain terms, does
not direct the Wisconsin Elections Commission (the
"Commission") to do anything. It necessarily follows that the
circuit court's mandamus order against the Commission to
deactivate voter registrations was erroneous, as it is
unquestionably true that a statute that does not even
apply cannot supply the required clear, unequivocal, and
non-discretionary duty to act. Rather, when it applies, section
6.50(3) allows local entities-municipal clerks and boards of
elections commissioners-to deactivate voter registrations if
there is "reliable information" that a particular voter has
moved outside of the municipality. That is something that

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requires local, on-the-ground determinations. There is simply
no basis for a mass-deactivation writ against the Commission.
The circuit court failed to apply the plain terms of the
statute and the mandamus standards, and its writ of
mandamus should be reversed.

ISSUES PRESENTED
Did the circuit court properly issue a writ of
mandamus ordering the Commission to comply with Wis.
Stat. § 6.50(3) and deactivate voter registrations on a mass
scale, when section 6.50(3) requires a discretionary reliability
determination about a particular voter, provides no right to
Plaintiffs to raise their mass challenge, and does not apply to
the Commission in the first place?
1.

The circuit court answered yes.
This Court should answer no.
2.
Did the circuit court properly find the
Commission in contempt for failing to comply with the writ of
mandamus, when the Commission sought and was granted a
stay of the writ and when the writ itself was unclear?
The circuit court answered yes.
This Court should answer no.

STATEMENT ON ORAL ARGUMENT AND
PUBLICATION
Oral argument is unnecessary because the issues
presented are fully briefed and may be resolved by applying
well-established principles of statutory construction to
undisputed facts.
Publication may be warranted because the statute in
question-Wis. Stat. § 6.50(3)- has not been addressed in any
published case and because the issues presented here are of
substantial and continuing public interest.
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STATEMENT OF THE CASE

I.

Statutory scheme

The Wisconsin Elections Commission is a state agency
responsible for administering certain election laws in the
state. Wis. Stat. § 5.05. Among other duties, the Commission
is responsible for compiling and maintaining electronically an
official voter registration list. Wis. Stat. §§ 5.05(15), 6.36(1).
The list is maintained electronically on WisVote, the
statewide election management and voter registration
system. (R. 23:2.) Commission employees, municipal clerks,
boards of election commissioners, and authorized election
officials may make changes to the list when the statutes allow
for revisions. Wis. Stat. §§ 6.36(1)(b)l.b., (l)(c), 7.20(1).
Revision of the list is required only under certain
circumstances. One such circumstance is when an elector has
not voted in the previous four years and does not respond to
an official notice. Pursuant to Wis. Stat. § 6.50(1), the
Commission is required to "examine the registration records
for each municipality and identify each elector who has not
voted within the previous 4 years if qualified to do so during
that entire period" and mail a notice to that elector notifying
them that their registration will be suspended unless they
apply for continuation of registration within 30 days.
Pursuant to Wis. Stat. § 6.50(2),
If an elector to whom the notice of suspension was
mailed under sub. (1) has not applied for continuation
of registration within 30 days of the date of mailing,
the Commission shall change the registration status
of that elector from eligible to ineligible on the day
that falls 30 days after the date of mailing.

Wis. Stat. § 6.50(2).
Another circumstance reqwnng rev1s1on to the
registration list is when the municipal clerk or municipal
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board of election commissioners determines there is reliable
information that an individual elector has changed her
residence. Wis. Stat. § 6.50(3). Wisconsin Stat. § 6.50(3)- the
only subsection at issue in this case-states 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
comm1ss1oners 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 under
s. 6.325, 6.48, 6.925, 6.93, or 7.52(5).
Wis. Stat. § 6.50(3) (format changed for readability).
As referenced in section 6.50(3), separate statutes
provide authorization and procedures for one elector to
challenge another elector's registration status. For example,
Wis. Stat. § 6.48 provides that "[a]ny registered elector of a
municipality may challenge the registration of any other
registered elector." In turn, Wis. Stat. § 6.325 provides that

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"[n]o person may be disqualified as an elector unless the
municipal clerk, board of election commissioners or a
challenging elector under s. 6.48 demonstrates beyond a
reasonable doubt that the person . . . is not properly
registered."

II.

Relevant factual background

In 2015, the Legislature enacted a statute directing
Wisconsin to join the Electronic Registration Information
Center, Inc. (ERIC) for the purpose of maintaining
Wisconsin's official voter registration list. The statute
required the Commission to enter into a membership
agreement with ERIC and to comply with the terms of the
agreement. See Wis. Stat. § 6.36(1)(ae). (R. 23:3-4; 24.) The
statute does not require deactivation of voter registrations,
nor does it cross-reference the subsections requiring revision
of the registration list, including Wis. Stat. § 6.50(3). See Wis.
Stat. § 6.36(ae).
ERIC is a nonprofit consortium of states that share data
about voters to help member states improve the accuracy and
efficiency of their voter registration systems. ERIC helps its
member states identify people who may be eligible to vote but
are not registered, voters who may have moved since their
last registration date, voters who are deceased, and voters
who may no longer be eligible to vote. ERIC does this by
comparing data about registered voters with information from
other sources, like the Division of Motor Vehicles (DMV) and
the United States Postal Service (USPS). (R. 23:4.)
The ERIC Membership Agreement requires member
states to transmit data relating to registration of electors in
the state to ERIC for sharing within the state and with other
member states. (R. 23:4; 24:1-2.) The Agreement also
requires member states to use data provided by ERIC to
improve the accuracy of the voter rolls by contacting voters
and informing them of their status and possible inaccuracies.
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Upon receiving data from ERIC, member states must initiate
contact with electors who may be eligible to vote but are
unregistered and inform them how to register to vote. (R. 23:5;
24:4-5.) And member states must also initiate contact with
voters whose records may be inaccurate. While the Agreement
requires member states to reach out to voters appearing on
the list maintenance reports, it does not mandate a process or
timeframe for removal of the person from the voter
registration list. (R. 23:5; 24:5.)
Every two years, Wisconsin receives a report from ERIC
regarding persons who are sometimes referred to as "Movers."
(R. 23:4-6.) ERIC Movers are Wisconsin residents who, in an
official government transaction with, for example, the DMV
or the USPS, reportedly have stated an address different from
their voter registration address. (R. 23:4-5.)
After receiving the first report on ERi C Movers data in
2017, the Commission mailed postcards to the identified
electors directing them to reregister if they had moved or to
sign and return the card to the municipal clerk or board of
elections commissioners to keep their registration current.
(R. 23:5-6.) The Commission stated that the voters had
30 days in which to respond to keep their registration active.
(R. 23:6.)
Based on its experience with the 201 7 Movers mailing,
the Commission learned that some percentage of that ERIC
data was not a reliable indicator of whether an elector
changed her voting residence, although the precise
percentage is not currently established. (R. 4:8-12; 23:5-10.)
For example, the Commission learned that some voters

flagged as ERIC Movers had simply registered a vehicle or
obtained a driver license at an address other than their voting
address and did not intend to change their voting residence.
(R. 4:9; 23:7.) The deactivation of elector registrations under
these circumstances caused numerous problems and resulted
in the Commission having to reactivate the registrations of
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electors who may have been deactivated in error. (R. 4:8-12;
23:5-10.)
In 2019, the Commission received another report on
Movers data from ERIC. (R. 23:10.) Based on what the
Commission learned from the 2017 Movers data and its
subsequent mailing, the Commission decided to revise its
process for the 2019 Movers data. (R. 23:10.) In October 2019,
the Commission sent letters to approximately 230,000
"Movers." (R. 23:10.) The letters asked electors to affirm
whether they still lived at that address. If the voter affirmed
that she had not moved, then the voter would remain in active
status on the voter rolls at that address. (R. 23:10-11.)
Because the Commission had no immediate plans for
deactivation, the letter did not include notice that the elector's
registration would be deactivated as a result of a nonresponse. (R. 23:10.) To the contrary, the letter told recipients
that simply voting in the next election would maintain their
status. (R. 23:10-11.)
For the electors who do not respond to the October 2019
mailings, the Commission decided that it would take no
immediate action, but rather would seek guidance from the
Legislature to the extent further action was contemplated.
(R. 23:11; 52:1-2.)

III.

Litigation history

On November 13, 2019, three Wisconsin votersTimothy Zignego, David Opitz, and Frederick Luehrs, IIIfiled suit against the Commission and five of its six
commissioners in their official capacities. (R. 1:4-5.) Plaintiffs
alleged the Commission violated Wis. Stat. § 6.50(3) by not
deactivating the registrations of those electors who did not
respond within 30 days after the October 2019 mailing. They
sought declaratory and injunctive relief or, in the alternative,
a writ of mandamus. (R. 1:3-18.)

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Before the Commission's answer deadline, Plaintiffs
filed a motion for a temporary injunction or, in the
alternative, a writ of mandamus, along with a brief and
affidavit containing exhibits. (R. 2-4.) After briefing on the
motion, the circuit court held oral argument and issued an
oral ruling on December 13, 2019. (R. 22-24; 45; 96.) The
circuit court orally ruled that a writ of mandamus would issue
to compel the Commission to comply with Wis. Stat. § 6.50(3)
and deactivate the registration of the electors who did not
respond within 30 days after the mailing of the October 2019
notices. (R. 131 (Mot. Hr'g. 76:12-16, Dec. 13, 2019), Resp.
App. 111.)
On December 17, 2019, the circuit court entered a
written writ of mandamus, which ordered: "Defendant
Wisconsin Election Commission is hereby ordered to comply
with the provisions of § 6.50(3) and deactivate the
registrations of those electors who have failed to apply for
continuation of their registration within 30 days of the date
the notice was mailed under that provision." (R. 77.)
The Commission immediately filed a notice of appeal
and a motion for expedited stay, 1 and then repeatedly sought
a ruling on the stay while it was pending. (R. 79; 103; 105-9.)
Despite these efforts, Plaintiffs returned to the circuit court
and filed a motion for contempt and remedial sanctions
against the Commission and certain commissioners for not
immediately deactivating the electors who did not respond to
the October 2019 mailing. (R. 93.) On January 13, 2020, the
circuit court found the Commission and three commissioners
in contempt of court and issued a written contempt order

That same day, December 17, 2019, the League of Women
Voters of Wisconsin and two electors filed a federal lawsuit alleging
that deactivating registrations without prior notice would violate
due process. League of Women Voters of Wis. v. Knudson,
No. 19-CV-1029 (W.D. Wis.), (R. 111.).
1

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imposing a remedial sanction of $250 per day against the
three commissioners and $50 per day against the Commission
until they complied with the writ. (R. 132 (Mot. Hr'g. 32:2334:19, Dec. 13, 2019), Resp. App. 128-30.) The Commission
immediately filed notice of appeal and a motion for expedited
stay of the contempt order. (R. 117.)
The next day, this Court granted the Commission's
motions to stay the writ of mandamus entered on December
13 and the contempt order issued on January 13. (R. 124;
125.) The Court later explained that it granted the stay
motions because the Commission demonstrated a strong
likelihood of success on the merits-particularly because Wis.
Stat. § 6.50(3) does not apply to the Commission or to these
circumstances-and that "the likely harm to some voters in
the absence of a stay outweighs the speculative harm to other
voters that the respondents argue may occur if a stay is
granted." (R. 128:3, 6-17.) After it stayed the writ of
mandamus, this Court further concluded "the Commission is
not in contempt at this time" because "it is not possible to
'disobey' an order that does not have current legal effect."
(R. 128:18.) This Court consolidated the two appeals and
ordered expedited briefing. (R. 127.)

SUMMARY OF THE ARGUMENT
There is no basis for the writ of mandamus requiring
the Commission to comply with Wis. Stat. § 6.50(3) and
deactivate voter registrations on a large scale. Section 6.50(3)
does not impose a clear, unequivocal, non-discretionary duty
on the Commission, as required for a writ of mandamus. In
fact, on its face, section 6.50(3) has no application to either the
circumstances or defendants here.
First, Wis. Stat. § 6.50(3)'s deactivation of an elector's
registration is triggered only when there is "reliable
information that a registered elector has changed his or her
residence to a location outside of the municipality." Wis. Stat.
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§ 6.50(3). This standard reqmres a judgment-based
determination applied on a voter-by-voter basis. It does not
permit mass-deactivation of voter registrations without
looking at specific data about particular voters and without
analyzing what is "reliable" in light of any particular
evidence. The circuit court here took one source of data (ERIC
Movers data) that is demonstrably inaccurate as to some
voters and applied it without differentiation to hundreds of
thousands of voters. That was wrong. There is no clear,
unequivocal, non-discretionary statutory directive to
deactivate voter registrations under the circumstances
presented here.
Relatedly, Plaintiffs have no right to even request
deactivations under that statute, much less mass
deactivations based on ERIC data. Rather, when individual
electors wish to challenge another elector's eligibility, they
must follow the statutory path for such challenges, which
comes with a beyond-a-reasonable-doubt burden of proof.
Second, the Commission has no positive and plain duty
under Wis. Stat.§ 6.50(3) because that statute does not apply
to the Commission. The only government entities directed to
change an elector's registration status under Wis. Stat.
§ 6.50(3) are municipal clerks and municipal boards of
election commissioners. Other subsections of Wis. Stat. § 6.50
make express reference to the defendant "commission," but
subsection (3) does not. Because the Commission is not even
mentioned in Wis. Stat. § 6.50(3), it has no clear duty to
deactivate voter registrations pursuant to the statute, and a
writ of mandamus cannot issue.
These fundamental statutory errors also create other
problems: the circuit court's writ improperly gave the October
2019 mailing the status of a deactivation notice, even though
that mailing informed the recipient of no such thing. The writ
was also overbroad in that it purported to apply to everyone
who received the October 2019 mailing, even though that
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mailing included intra-municipality movers who are not even
subject to deactivation under Wis. Stat. § 6.50(3). These
collateral problems go away with a correct reading of the
statute.
Lastly, although it falls away given the invalidity of the
underlying order, it also is worth noting that the contempt
ruling was not appropriate for additional reasons. The writ of
mandamus was not a specific and unequivocal directive.
Relatedly, the Commission and three Commissioners did not
intentionally disobey the writ because it made repeated
efforts to obtain a stay of the writ, which this Court correctly
granted.

STANDARD OF REVIEW
This Court reviews a decision to issue a writ of
mandamus for an erroneous exercise of discretion. Law Enft
Standards Bd. v. Vill. Of Lyndon Station, 101 Wis. 2d 472,
493-94, 305 N.W.2d 89 (1981).
This Court
reviews
questions of statutory
interpretation de novo. League of Woman Voters of Wis. v.
Evers, 2019 WI 75, ,r 13, 387 Wis. 2d 511, 929 N.W.2d 209.
This Court also reviews questions of standing, jurisdiction,
and competency de novo. Krier v. Vilione, 2009 WI 45, 1 14,
317 Wis. 2d 288, 766 N.W.2d 517; Vill. of Trempealeau v.
Mikrut, 2004 WI 79, 1 7, 273 Wis. 2d 76, 681 N.W.2d 190.
This Court reviews the circuit court's use of its
contempt power for an erroneous exercise of discretion. State
ex rel. N.A. v. G.S., 156 Wis. 2d 338, 341, 456 N.W.2d 867 (Ct.
App. 1990).

ARGUMENT

I.

Plaintiffs are not entitled to a writ of mandamus.

This appeal is of a writ of mandamus, which may only
issue when a public official has violated a clear and express
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statutory duty. Mandamus is a writ used "to compel a public
officer to perform a duty of his office presently due to be
performed." State ex rel. Marberry v. Macht, 2003 WI 79, 127,
262 Wis. 2d 720, 665 N.W.2d 155. It is an extraordinary
remedy. Lake Bluff Hous. Partners v. City of South
Milwaukee, 197 Wis. 2d 157, 170, 540 N.W.2d 189 (1995). "In
order for a writ of mandamus to be issued, four prerequisites
must be satisfied: '(1) a clear legal right; (2) a positive and
plain duty; (3) substantial damages; and (4) no other adequate
remedy at law."' Voces De La Frontera, Inc. v. Clarke, 2017 WI
16, 1 11, 373 Wis. 2d 348, 891 N.W.2d 803 (citation omitted).
"[M]andamus will not lie to compel the performance of
an official act when the officer's duty is not clear and requires
the exercise of judgment and discretion." Beres v. City of New
Berlin, 34 Wis. 2d 229, 231-32, 148 N.W.2d 653 (1967). "[I]t
is an abuse of discretion to compel action through mandamus
when the duty is not clear and unequivocal and requires the
exercise of discretion." Law Enft Standards Bd., 101 Wis. 2d
at 494 (citations omitted).
This appeal of the writ of mandamus presents a
question of statutory interpretation. Statutory interpretation
begins with the language of the statute. If the language is
plain., the inquiry stops. State ex rel. Kalal v. Circuit Court for
Dane Cty., 2004 WI 58, 145, 271 Wis. 2d 633, 681 N.W.2d 110.
"Statutory language is given its common, ordinary, and
accepted meaning, except that technical or specially-defined
words or phrases are given their technical or special
definitional meaning." Id. "Context is important to meaning.
So, too, is the structure of the statute in which the operative
language appears. Therefore, statutory language 1s
interpreted in the context in which it is used; not in isolation
but as part of a whole; in relation to the language of
surrounding or closely-related statutes; and reasonably, to
avoid absurd or unreasonable results." Id. 1 46.

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The circuit court misinterpreted the plain text of Wis.
Stat. § 6.50(3), causing numerous legal and practical
problems. Construed properly, Wis. Stat. § 6.50(3) does not
impose a clear, unequivocal, non-discretionary duty on the
Commission. In fact, it does not apply to the present
circumstances, or the Commission, at all.

A

Mandamus was improper based on Wis.
Stat. § 6.50(3)'s "reliable information"
standard and also because Plaintiffs have
no right to use that statute for mass
deactivations.
1.

Wisconsin Stat. § 6.50(3) requires a
judgment-based determination about
a particular voter.

Wisconsin Stat. § 6.50(3)'s deactivation of an elector's
registration is triggered only when there is "reliable
information that a registered elector has changed his or her
residence to a location outside of the municipality." Wis. Stat.
§ 6.50(3). This standard requires a judgment-based
determination applied on a case-by-case basis to a particular
voter. Mandamus was improper based on such a standard,
much less a mass-deactivation mandamus order.
As a basic matter, a writ of mandamus cannot issue
under a statute that is triggered by a judgment-based inquiry
about "reliability." Beres, 34 Wis. 2d at 231-32. Although not
defined in the statute, as a general matter, ""Reliable" means
something that "can be depended upon with confident
certainty." State v. Champlain, 2008 WI App 5, ,r 28, 307 Wis.
2d 232, 744 N.W.2d 889 (citing The Random House Dictionary
of the English Language 1628 (2d ed. 1987)).
Thus, determining whether information is "reliable"
requires an exercise of judgment or discretion and, in
particular, it must be on a case-by-case basis under Wis. Stat.

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§ 6.50(3). A duty is not plain if it requrres discretion.
Therefore, mandamus is inappropriate here.

In any event, Plaintiffs and the circuit court did not
meaningfully address or apply the substantive standard in
Wis. Stat. § 6.50(3). The "reliable information" standard
applies on a case-by-case basis to "a registered elector"-in
other words, to a particular voter. To further illustrate, in
other statutes in chapter 6 where the term "reliable
information" is used, it always applies to an individual
elector. See, e.g., Wis. Stat. §§ 6.32(2), (4) (verification of the
qualifications of a "proposed elector" based on "reliable
information"), 6.87(3)(b) (municipal clerk shall not send
absentee ballot when there is "reliable information that an
address given by an elector" is not eligible to receive such a
ballot), 6.86(2)(b), 6.22(4)(f).
Here, neither Plaintiffs nor the circuit court even
attempted to make that kind of determination on a voter-byvoter basis, as would be required. Rather, the court simply
took wholesale one data set-the ERIC Movers data-and
assumed it was reliable for hundreds of thousands of people,
even though that data is known to be an inaccurate indicator
of a permanent change of residence for some percentage of
voters.
ERIC Movers data is not collected or reported as a
foolproof indicator that someone has actually permanently
changed his or her voting residence. Far from it. Rather, it is
simply a database that seeks to identify Wisconsin residents
who, in some sort of official government transaction, have
reported an address different from their voter registration
address. However, because the source data was collected for
purposes other than voter registration and because of
anomalies inherent in the data-matching process, it is
undisputed that the ERIC Movers data is not always an
accurate reflection of an individual's voting residence; only
the percentage of inaccuracy is in dispute. (R. 131 (Mot. Hr'g.
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44:14-45:12, 55:20-23, Dec. 13, 2019), 23:4-5.) A record of a
government transaction revealing a different address than
the elector's registration address does not necessarily mean
that the elector has moved or intended to establish a new,
permanent voting residence-for instance, the person may
have
just
registered
a
vehicle
or
obtained
a driver license at a different address.2 (R. 23:4-5, 7.) In
other words, it unquestionably is not something that "can be
depended upon with confident certainty." Champlain,
307 Wis. 2d 232, ,r 28 (citation omitted).
Here, however, neither Plaintiffs nor the circuit court
attempted to glean more information to potentially weed out
voters who, for example, reported a different address for a
business purpose, a temporary purpose, or some other
purpose, but yet still permanently resided in their registered
address. Likewise, they did not attempt to glean more
information to help discern whether there was simply a
mistake in some ERIC data. And no voter affected by the
court's purported "reliable information" determination was
allowed a chance to demonstrate that it was not reliable.
This is not a mere hypothetical. It is undisputed that
some ERIC data in the past has inaccurately flagged a person
as having moved to a different municipality. (R. 4:8-12;
23:5-10.) And there is every reason to believe that is true of
the most recent data set, as well. To give just one example, in

2 "Elector residence" is defined in statute and includes
consideration of the person's physical presence and intent
regarding their voting residence: "The residence of a person is the
place where the person's habitation is fixed, without any present
intent to move, and to which, when absent, the person intends to
return." Wis. Stat. § 6.10(1). The statute then describes various
determinations of residence. Wis. Stat. § 6.10(2}-(13). Notably, no
person loses residence when he or she leaves home and goes to
another state or another municipality within Wisconsin "for
temporary purposes with an intent to return." Wis. Stat.§ 6.10(5).

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the related federal lawsuit, League of Women Voters of
Wisconsin v. Knudson, No. 19-CV-1029 (W.D. Wis.), one of
the plaintiffs reports having received an ERIC Movers
mailing in 2019, despite living at the same address in
Milwaukee for over 16 years. (R. 111:15-16.)
To properly apply the statute, there would have to be
an actual legal and factual analysis of whether data supports
a finding of "reliable information" as to each particular voter,
which would necessarily need to consider other information to
meaningfully assess "reliability." Plaintiffs have not even
attempted to do that.
Nor have they attempted to explain how their massdeactivation premise is consistent with surrounding statutes.
For example, and as discussed more below, the electorchallenge provision in chapter 6 states that "[n]o person may
be disqualified as an elector unless the municipal clerk, board
of election commissioners or a challenging elector under
s. 6.48 demonstrates beyond a reasonable doubt that the
person does not qualify as an elector or is not properly
registered." Wis. Stat. § 6.325. It cannot be that Plaintiffs'
casual view of what is "reliable" is correct when related
statutes giving an individual elector the right to challenge
another's registration require a robust ''beyond a reasonable
doubt" showing.
None of these kinds of analyses have occurred, nor does
it make sense to take on that kind of task for hundreds of
thousands of people at the state level.
Rather, as explained more below, Wis. Stat. § 6.50(3)
and its "reliability" standard applies to municipal election
bodies who, unlike the Commission, are privy to local
information that might inform whether information is truly
reliable as to a particular voter. See Wis. Stat. § 6.50(3) ("All
municipal departments and agencies receiving information
that a registered elector has changed his or her residence
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shall notify the clerk or board of elections commissioners.")
And, even on that local and individual basis, those decisions
would not be subject to the kind of mandamus relief issued
here, as second-guessing judgment calls is not what
mandamus is for. See Beres, 34 Wis. 2d at 231-32.
2.

Wisconsin Stat. § 6.50(3) provides no
statutory right, or standing, for
Plaintiffs' challenge.

A related reason that Plaintiffs' efforts fail 1s that
section 6.50(3), and its "reliability" determination, does not
provide a right of action for individual electors. Rather, to the
extent individuals may challenge another elector's eligibility,
that challenger must use separate statutory procedures and
standards.
The lack of a statutory right and a lack of standing are,
here, related. Under Wisconsin's law of standing, the Court
"must determine whether the party seeking standing was
injured in fact, and whether the interest allegedly injured is
arguably within the zone of interests . .. protected or regulated
by the statute." Milwaukee Deputy Sheriffs Ass'n v. City of
Wauwatosa, 2010 WI App 95, , 31, 327 Wis. 2d 206, 787
N.W.2d 438 (citation omitted).
Here, Plaintiffs have suffered no cognizable injury.
They have made no showing that when another person's voter
registration is not deactivated that affects their individual
rights. See, e.g., Town of Baraboo v. Vill. of W Baraboo, 2005
WI App 96, , 35, 283 Wis. 2d 479, 699 N.W.2d 610 (citation
omitted) (In deciding whether a party has standing to seek
declaratory relief, among other things, courts "inquire
whether the plaintiff has 'a personal stake in its outcome."').
Similarly, Plaintiffs also have no general taxpayer standing.
Rather, that requires a showing "that the complaining
taxpayer and taxpayers as a class have sustained, or will
sustain, some pecuniary loss; otherwise the action could only
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be brought by a public officer." S.D. Realty Co. v. Sewerage
Comm'n of City of Milwaukee, 15 Wis. 2d 15, 21-22, 112
N.W.2d 177 (1961) (emphasis added). That is not supported
by Plaintiffs' general allegation that any agency staff time
devoted to a supposed improper activity equates to an "illegal
expenditure of (public funds]." There is no authority for
applying taxpayer standing theory to such agency staff action.
(R. 3:13.)
Further, even if Plaintiffs could show a cognizable
injury, they still would have no standing because they are not
within Wis. Stat. § 6.50(3)'s "zone of interests." The statute
provides no cause of action for an individual voter to challenge
another voters' registration status, much less on a large-scale
as Plaintiffs seek in this lawsuit.
Tellingly, different statutes are specifically designed for
electors (like Plaintiffs here) to challenge another electors
status. Those come with different procedures and more
protection for the challenged voter-notably, proof "beyond a
reasonable doubt"-and those statutes are more limited,
allowing an individual elector to challenge the individual
registration status of a particular elector. See Wis. Stat.
§§ 6.48 ("[a]ny registered elector of a municipality may
challenge the registration of any other registered elector"),
6.325 ("No person may be disqualified as an elector unless the
municipal clerk, board of election commissioners or a
challenging elector under s. 6.48 demonstrates beyond a
reasonable doubt that the person does not qualify ...."). This
Court has recognized as much: "Section 6.48, which governs
pre-election registration challenges, provides that the
challenging elector must demonstrate beyond a reasonable
doubt that the person does not qualify or is not properly
registered." Logerquist v. Bd. of Canvassers for Town of
Nasewaupee, 150 Wis. 2d 907, 917, 442 N.W.2d 551, 555-56

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(Ct. App. 1989) (emphasis added). 3
In addition, the
challenged elector is entitled to be heard before her
registration is deactivated. See Wis. Stat. § 6.48(1)(b).

That process governs pre-election registration
challenges by an elector, not section 6.50(3). And, likewise, it
certainly does not allow mass registration challenges, much
less based on one data set that is not always an accurate
indicator of whether an elector has changed her voting
residence, like the ERIC data here.
Plaintiffs have claimed their standing derives from a
Commission decision denying their administrative complaint.
(R. 3:10-12.) However, Plaintiffs cannot back into standing
via an administrative complaint, when the statutes do not
provide a right to a challenge in the first place. Further, Wis.
Stat. § 227.57 is the exclusive method of review of a
Commission decision, and because that process was not
followed here, the circuit court lacked competency to hear the
merits of Plaintiffs' challenge to it, let alone issue a writ. Wis.
Stat. § 5.06(8), (9); Kuechmann v. Sch. Dist. of LaCrosse,
170 Wis. 2d 218, 223-24, 487 N.W.2d 639 (Ct. App. 1992).
Wisconsin Stat. § 6.50(3) contains no language allowing
an individual elector to challenge the registration of another
elector, much less on a mass scale without meaningful inquiry
into an individual elector's circumstances or an opportunity
for that elector to be heard. Plaintiffs, therefore, have no
statutory right, or standing, to bring their mass deactivation
challenge under Wis. Stat.§ 6.50(3).

3

That also would be true no matter when in the process an
elector seeks to bring a challenge: "the burden of proof rests on the
challenger, and the requisite standard of proof is beyond a
reasonable doubt, whether the challenge occurs prior to the
election, at the polls, or after the election." Logerquist v. Bd. of
Canvassers for Town of Nasewaupee, 150 Wis. 2d 907, 917,
442 N.W.2d 551 (Ct. App. 1989)

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B.

Filed 02-04-2020

In addition, the Commission has no positive
and plain duty under Wis. Stat. § 6.50(3)
because that statute does not apply to it.

There is another fundamental statutory flaw with
Plaintiffs' theory. The subsection in question does not even
apply to the Commission. It thus cannot form the basis for an
order against the Commission, much less a mandamus order.
Unlike other subsections in Wis. Stat. § 6.50 that
expressly apply to the Commission, subsection (3) governs
only the acts of two other government entities: "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 . . . . 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." Wis. Stat.
§ 6.50(3).
Those terms-including the "board of elections
commissioners"-have specific statutory definitions and
descriptions that do not include the Wisconsin Elections
Commission. That, alone, is dispositive: mandamus cannot
issue against an entity that is not even covered by a statute.
As discussed above, Wis. Stat. § 6.50(3) contemplates an
individualized finding of whether there is "reliable
information" that a particular voter in a particular
municipality has changed residence. In that big-picture view,
it makes sense that subsection (3) does not apply to the
statewide Wisconsin Elections Commission. Rather, this
subsection applies only to a "municipal clerk or board of
election commissioners," the only two entities referenced in
that subsection, which are better situated to make the
individualized determination required by that law.
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Section 6.50(3) makes explicit what entities it covers,
and they do not include the Commission. The Wisconsin
Elections Commission is not a "board of election
commissioners" under Wis. Stat. § 6.50(3). The term is
explained in Wis. Stat. § 7.20, which refers to "[a] municipal
board of election commissioners" and "[a] county board of
election commissioners," which are established in every city
over 500,000 population and county over 750,000 population.
Wis. Stat.§ 7.20(1). "Each board of election commissioners" is
comprised of several members who must reside in the
municipality or county. Wis. Stat. § 7.20(2)-(3). These
commissioners are selected by the mayor and county
executive. Wis. Stat. § 7 .20(2). A board of election
commissioners is, therefore, a local entity comprised of local
officials.4
The Wisconsin Elections Commission has a wholly
separate statutory definition. By statute, the Wisconsin
Elections Commission is an independent state agency
consisting of members appointed by various state officials,
such as the governor, speaker of the assembly, and senate
majority leader. See Wis. Stat. §§ 15.02(2), 15.61(1)(a)l.-6.
Further, the Legislature has assigned the Commission
specific duties. See Wis. Stat. § 7.08. And, notably, when

referring to the Wisconsin Elections Commission, the statutes
tell us that "[i]n chs. 5 to 10 and 12, 'commission' means the
elections commission." Wis. Stat. § 5.025. Thus, the
4

Plaintiffs claimed that the "board of election
commissioners" does not have a statutory definition because that
term is only in the caption, not the text, of Wis. Stat. § 7 .20.
But that misses the point. The language of Wis. Stat. § 7 .20
illustrates that the ''board of election commissioners" is a local
entity, separate and distinct from the state entity that is "the
commission" under Wis. Stat. § 5.025. That "technical or special
definitional meaning'' controls. Kalal, 271 Wis. 2d 633, ,r 45.

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Legislature has specifically instructed that, when used in the
statutes, the term "commission," alone, means the Wisconsin
Elections Commission. 5
Chapter 6 and Wis. Stat. § 6.50 bear that out. For
example, Wis. Stat. § 6.50(1)-(2)'s four-year voter
maintenance process is done by "the commission," not any
other entity. In subsection (1), "the commission shall examine
the registration records of each municipality" and "mail a
notice to the elector." Wis. Stat. § 6.50(1). Under subsection
(2), if an elector who was mailed a "notice of suspension"
under the four-year maintenance process in subsection
(1) does not respond, "the commission shall change the
registration status ... from eligible to ineligible." Wis. Stat.
§ 6.50(2). 6 Subsections (1) and (2) show that the Legislature
knows how to give the Commission a directive related to
changing an elector's registration status: it uses the statutory
term, "the commission." Wisconsin Stat. § 6.50(3) contains no
such directive to "the commission," as it says nothing about
"the commission."
Further demonstrating that "the commission" is not the
same as the "board of election commissioners" are subsections
(2g) and (7) of Wis. Stat. § 6.50. There, the Legislature uses
the terms "the commission," "municipal clerk," and ''board of
election commissioners" in the same sentence. See Wis. Stat.

Plaintiffs argued that the Commission is literally a ''board
of elections commissioners." It is not. While some independent
agencies are headed by boards, the Wisconsin Elections
Commission is headed by a commission. See Wis. Stat. §§ 15.5715.94. The statutory process for selecting a board to head an
independent agency is entirely different that the process for
selecting commissioners for the Commission. Compare Wis. Stat.
§ 15.07, with Wis. Stat. §15.61.
5

Importantly, subsection (3) has no relation to the four-year
maintenance process set forth in subsections (1) and (2) of Wis.
Stat. § 6.50.
6

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§ 6.50(2g), (7) ("When an elector's registration is changed from
eligible to ineligible status, the commission, municipal clerk,
or board of election commissioners shall make an entry on the
registration list, giving the date of and reason for the
change."). The simultaneous use of these three different terms
in the same subsection of Wis. Stat. § 6.50 again demonstrates
that they are three different bodies. Other election statutes in
chapter 6 further confirm this. For example, Wis. Stat.
§§ 6.275 and 6.56(3) describe communications between the
''board of election commissioners" and "the commission."

To conclude that the Wisconsin Elections Commission
(i.e., "the commission") has any duty, much less an
unequivocal one, under Wis. Stat. § 6.50(3) means one must
ignore the plain text of the statute entirely. Of course, that is
not an option.
Plaintiffs' argument below, and the circuit court's
decision, ignored this. Rather than apply that express
language, they relied on the Commission's past conduct and
different statutes and duties, like the duty to maintain the
registration list pursuant to Wis. Stat. § 5.05(15). None of
these assertions change the mandate in Wis. Stat.§ 6.50(3).
First, the Commission's past conduct is irrelevant to
whether Wis. Stat.§ 6.50(3) requires it to act now. 7 Conduct
does not amend or augment an administrative agency's
statutory authority. Dames & Moore v. Regan, 453 U.S. 654,
686 (1981) (stating that "[p]ast practice does not, by itself,
create power"); Koschkee v. Taylor, 2019 WI 76, ,r 20, 387 Wis.
2d 552, 929 N.W.2d 600 ("As we have explained, an agency's

In one instance in the past using ERIC Movers data, the
Commission decided to give the electors 30 days in which to
respond to keep their registration active. (R. 23:6.) As noted in the
background, the Commission ultimately had to reverse course for
many of those deactivations. Those decisions were not challenged
in court.
7

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'powers, duties and scope of authority are fixed and
circumscribed by the legislature ...."' (citation omitted)). It
remains the case that the statute applies only to municipal
clerks and boards of elections commissioners, which are
empowered to make changes to the registration list when the
statute is satisfied.
Second, Petitioners cited the Commission's duty to
maintain the registration list under Wis. Stat. § 5.05(15). But
the duty to maintain the master list does not dictate when,
and by whom, particular changes must be made to voters'
eligibility
Rather, Wis. Stat. § 6.50 specifically addresses that
topic and mandates "[r]evision[s]" to the registration list
when certain circumstances are present. Some of the
subsections in section 6.50 require the Commission to make
those revisions-for example, subsections (1) and (2)'s fouryear maintenance process requires revision in conjunction
with that four-year audit process. And, as discussed above,
other provisions provide authority to other local government
entities-for example, subsection (3) directs a municipal clerk
or board of election commissioners to make revisions when
they determine there is "reliable information" about a voter's
permanent move out of a municipality.8
In contrast, Wis. Stat. § 5.05(15) simply recognizes that
"[t]he commission is responsible for the design and
maintenance of the official registration list." Wis. Stat.
§ 5.05(15). That does not mandate that the Commission make
a change to an individual voter's registration status. The
discretion afforded to the Commission to "maintain" the list

Contrary to Plaintiffs' assertion in previous briefs, both
clerks and boards of elections commissioners are authorized to
make changes to the registration list. See Wis. Stat.
§§ 6.36(1)(b)l.b., (l)(c), 7.20(1).
8

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cannot support mandam us and does nothing to change the
coverage of the subsections in Wis. Stat. § 6.50.

C.

The misreading of the statute creates
additional problems

The foregoing explains errors in the circuit court's use
of Wis. Stat. § 6.50(3) when it failed to properly apply its
"reliable information" standard and ignored its express
coverage. Those errors, in turn, create other problems that
would resolve with a correct reading of the statute.
1.

The circuit court writ conflicts with
the October 2019 mailing.

In October 2019, the Commission sent a letter to
electors flagged as ERIC Movers. (R. 23:10.) The letter did not
indicate that the recipients' registration would be deactivated
as a result of a non-response to the letter. To the contrary, it
told recipients that simply voting in the next election would
maintain their status. (R. 23:10-11.) That made sense
because, as discussed above, Wis. Stat. § 6.50(3)'s standard
and its coverage does not apply to the Commission or this kind
of mass deactivation attempt. The Commission properly did
not provide a deactivation notice. However, the circuit court's
decision here retroactively gave that October 2019 letter the
status of a deactivation notice even though that mailing, as a
matter of fact, informed its recipients of no such thing.
The circuit court took no account of that mismatch. If
Wis. Stat. § 6.50(3) and its "reliable information" standard
could actually be applied here, this deactivation notice issue
would need to be addressed. Indeed, that prospect is not
hypothetical. Currently pending is a federal lawsuit alleging
that this mismatch violates federal due process principles.
See League of Women Voters of Wis. v. Knudson,
No. 19-cv-01029-jdp (W.D. Wis.). (R. 111.) This constitutional

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question could be avoided with a correct reading the plain
language of the statute.

2.

The circuit court writ was overbroad
in additional ways.

There also is a significant scope problem: the writ
seemingly applies overbroadly to intra-municipality movers
who are not even subject to registration deactivation under
Wis. Stat. § 6.50(3).
The deactivation process starts with a determination by
a municipal entity that there is "reliable information that a
registered elector has changed his or her residence to a
location outside of the municipality." Wis. Stat. § 6.50(3). If
triggered, a notice stating the source of the information is
mailed to the elector. Id. If the elector does not change her
registration or respond to the notice within 30 days, the
elector's registration shall be changed "from eligible to
ineligible." Id. But upon the "receipt of reliable information
that a registered elector has changed his or her residence
within the municipality," officials "shall change the elector's
registration" and "mail the elector a notice of change." Id.
The statute does not require or permit deactivation of
all electors' registrations. Deactivation is only permitted and
required when the municipal clerk or board of election
commissioners receives reliable information that an elector
has permanently moved outside of the municipality. On the
other hand, when reliable information shows a permanent
move within the municipality, the elector's registration is
merely changed, not deactivated. The writ ignores this
important distinction and requires deactivation in both
circumstances.
Now seemingly aware of that problem, Plaintiffs seek
removal of only those who may have moved to a different
municipality, which is narrower relief than what they asked
for in the circuit court and also is narrower than the group
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identified by the October mailing. (R. 105:3.) This error in the
scope of the circuit court's ruling would disappear if the
threshold errors applying the subsection to the Commission
were corrected.

II.

The writ of mandamus cannot form the basis for
a contempt finding.

The foregoing explains why, for multiple reasons, the
writ must be reversed. There also is a second issue in this
consolidated appeal, regarding a contempt ruling based on
that writ. However, the forgoing should resolve both appeals:
The Commission cannot be in contempt of a reversed order.
Further, this Court stayed the contempt ruling the
morning after it issued, meaning at most the contempt
decision imposed sanctions for one day. Under no
circumstances was the contempt finding appr.o priate. The
contempt order should be vacated.
Remedial contempt may be "imposed for the purpose of
terminating a continuing contempt of court." Wis. Stat.
§ 785.01(3). Plaintiffs, as the moving party, have the initial
burden of proving that the Commission failed to comply with
the court order. In re Adam's Rib, Inc., 39 Wis. 2d 741, 747,
159 N.W.2d 643 (1968).
Contempt is the "intentional . . . [d]isobedience,
resistance or obstruction of the authority, process or order of
a court." Wis. Stat. § 785.0l(l)(b); Frisch u. Henrichs, 2007
WI 102, 1 33, 304 Wis. 2d. 1, 736 N.W.2d 85. Contempt is a
"drastic and extraordinary" remedy. Joint Sch. Dist. No. 1 u.
Wis. Rapids Educ. Ass'n., 70 Wis. 2d 292, 317, 234 N.W.2d 289
(1975).
For a party's action or inaction to be punishable by
contempt, a circuit court's order must be a specific directive to
that party to act or refrain from acting. Carney u. CNH Health
& Welfare Plan, 2007 WI App 205, 1 1 7, 305 Wis. 2d 443,
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740 N.W.2d 625. Only an "order or judgment which requires
specific conduct (either to do, or to refrain from, specific
actions) can be enforced by contempt." Id. A court's order must
be an "unequivocal" directive. State v. Dickson, 53 Wis. 2d
532, 541, 193 N.W.2d 17 (1972). This requirement exists so
"the person being enjoined [knows] what conduct must be
avoided." Welytok v. Ziolkowski, 2008 WI App 67, 1 24, 312
Wis. 2d 435, 752 N.W.2d 359.
Here, the writ of mandamus issued by the circuit court
cannot, under any circumstances, support a contempt finding
because there was no intentional obedience and also it is not
a specific and unequivocal directive.
First, there was no intentional disobedience under the
circumstances. Rather, from the moment the writ issued, and
continually until the stay was imposed, the Commission
sought a stay ruling from this Court and the supreme court,
as both the circuit court and Plaintiffs (at least sometimes)
asserted was appropriate as a first step. (R. 105- 109; 112:9,
10, 16; 131 (Mot. Hr'g. 78:24-25, Dec. 13, 2019), Resp. App.
113.) These circumstances should not support contempt as a
basic matter especially where, as here, there was a real risk
of confusion and other collateral effects on the voting public.
Second, the writ of mandamus was not sufficiently clear
to support contempt. It ordered the Commission to "comply
with the provisions of § 6.50(3) and deactivate the
registrations of those electors who have failed to apply for
continuation of their registration within 30 days of the date
the notice was mailed under that provision." (R. 77:2.) This
general language was not a clear directive to the Commission
as to when, how, or who to deactivate. Carney, 305 Wis. 2d
443, ,I 17; Dickson, 53 Wis. 2d at 541.
For example, the writ did not clearly direct the
Commission when to deactivate electors' registrations.
Because the writ instructed the Commission "to comply with
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the provisions of§ 6.50(3) and deactivate the registrations of
those electors," the statute itself must be consulted regarding
the timing of any deactivations. But the statute provides no
guidance on deactivation timing. It simply reads that "[i]f 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." Wis. Stat. § 6.50(3). The condition for being
changed from eligible to ineligible status is "fail[ing] to apply
for continuation of registration within 30 days of the date the
notice is mailed." Id. Once that 30-day period passes, an
elector's registration status "shall" be changed-but the
statute does not say how soon that must occur. Id. Put
differently, the 30-day period governs how long an elector has
to respond to the notice mailed, not when the relevant
government entity shall change an elector's status. The writ
is, therefore, not a clear and unequivocal directive for the
Commission to immediately deactivate electors.9 Thus, for
example, it did not violate a directive when seeking an
expedited stay before taking immediate action.
In addition, the writ did not clearly direct the
Commission how it must "comply with the provisions of
§ 6.50(3) and deactivate" electors' registrations. Specifically,
it did not address the notice, if any, that electors should
receive before being deactivated. Wisconsin Stat. § 6.50(3)
contains a notice provision, which reads: "Upon receipt of
reliable information that a registered elector has changed his
or her residence to a location outside of the municipality, the
9

Another subsection in Wis. Stat. § 6.50 makes this lack of
a specific deadline clear. In subsection (2), the Legislature directs
that "the commission shall change the registration status of [the]
elector from eligible to ineligible on the day that falls
30 days after the date of mailing." Wis. Stat. § 6.50(2). Subsection
(3), however, contains no "on the day" language.

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municipal clerk or board of election comm1ss1oners shall
notify the elector by mailing a notice by 1st class mail to the
elector's registration address stating the source of the
information." The writ requires the Commission to "comply
with" Wis. Stat. § 6.50(3), which could very well mean
providing another notice before deactivating the registrations
of any electors. Indeed, the circuit court's ruling from the
bench seemed to leave open that possibility: "I'm going to
issue the writ of mandamus. I'm going to compel the Elections
Commission to comply with the thirty-day notice. I can't tell
them how to do that. I don't know how to do that. They'll have
to figure that out." (R. 131 (Mot. Hr'g. 76:12-16, Dec. 13,
2019), Resp. App. 111 (emphasis added).) Simply put,
contempt was not proper where the Commission had to
"figure out" how to comply with the circuit court's directive.
Further, the writ did not clearly notify the Commission
whose registrations it must deactivate. Although, when
applicable, Wis. Stat. § 6.50(3) may require deactivation for
some electors, it only potentially applies to an elector who has
moved outside his registered municipality. An elector who has
simply moved within her registered municipality is not
deactivated under that provision. In fact, section 6.50(3)
requires the municipal clerk or municipal board of election
commissioners to change the elector's registration to the new
address, not to deactivate the registration. That requirement
to change the elector's registration would seem to also be part
of the mandate "to comply with the provisions of § 6.50(3)."
The writ was thus unclear regarding which electors should be
deactivated.
Thus, for multiple reasons, these circumstances cannot
support a contempt finding.lo
In any event, there is no basis for contempt and remedial
sanctions against the individual commissioner defendants. First,
10

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****
The circuit court writ creates a host of intractable legal
and practical problems that go away if the statute is simply
applied as written and if mandamus' requirements are given
effect: it only applies to unequivocal statutory duties, free of
judgment and discre_tion, which are wholly absent here.
Plaintiffs' premise requires ignoring the statute's
"reliable information" standard, its scope, and its target. It
also requires the counterfactual assumption that the 2019
ERIC Movers data is completely accurate. That is not so. The
circuit court's writ risks removing properly registered voters,
doing so based on an unworkable reading of the statute's
coverage and legal standard, and carrying this out in a way
that does not correspond to how voters were told the data was
being used in October 2019. The circuit court's decision is
unjustified under any standard, much less under mandamus,
and should be reversed.

CONCLUSION
This Court should reverse the writ of mandamus and
vacate the contempt order of the circuit court.

the individual defendants were not ordered to comply with the
writ; only "Defendant Wisconsin Election Commission" was
directed to act. (R. 77.) Second, individual commissioners cannot
act separately from the Commission as an entity. Any action by the
Commission requires the affirmative vote of two-thirds of the
members. Wis. Stat. § 5.05(1e). Thus, by law it is impossible for the
individual commissioners to deactivate electors' registrations. And
the "inability to obey that order is a defense to contempt." Ash
Park, LLC v. Alexander & Bishop, Ltd., 2010 WI 44, ,i 79, 324 Wis.
2d 703, 783 N.W.2d 294.

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Dated this 4th day of February 2020.
Respectfully submitted,
JOSHUA L. KAUL
Attorney General of Wisconsin

~l

/ \ ~LA Z. K CKHAVER
Assistant Attorney General
State Bar #1028242
STEVEN C. KILPATRICK
Assistant Attorney General
State Bar #1025452
COLIN T. ROTH
Assistant Attorney General
State Bar #1103985
Attorneys for Defendants-Appellants
Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 264-6365 (KZK)
(608) 266-1 792 (SCK)
(608) 264-6219 (CTR)
(608) 267-2223 (Fax)
keckhaverkz@doj .state. wi. us
kilp a tricksc@doj .state.wi. us
rothct@doj. state. wi. us

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CERTIFICATION
I hereby certify that this brief conforms to the rules
contained in Wis. Stat. § 809.19(8)(b) and (c) for a brief
produced with a proportional serif font. The length of this
brief is 9169 words.
Dated this 4th day of February 2020.

~
2~
~ ~LA

Z. KECKHAVER
Assistant Attorney General

CERTIFICATE OF COMPLIANCE
WITH WIS. STAT. § 809.19(12)
I hereby certify that:
I have submitted an electronic copy of this brief,
excluding the appendix, if a ny, which complies with the
requirements of Wis. Stat. § 809.19(12).
I further certify that:
This electronic brief is identical in content and format
to the printed form of the brief filed as of this date.
A copy of this certificate has been served with the paper
copies of this brief filed with the court and served on all
opposing parties.
Dated this 4th day of February 2020.

ssistant Attorney General

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