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The Badger State’s troubled election regulator continues to have a transparency problem. 

The Wisconsin Elections Commission (WEC) is facing possible court intervention for its refusal to turn over records related to guidance that WEC issued to local election clerks about same-day registration safeguards. 

According to a lawsuit filed by the Public Interest Legal Foundation (PILF), the commission issued updated guidance in February 2023, but has stonewalled PILF’s records requests seeking communications about the creation of the guidance for “at least 397 days.” 

“Same-Day Voter Registration is already a vote now verify later system,” J. Christian Adams, president of the election integrity watchdog, said in a statement. “Wisconsin is adding more uncertainty to its election process by hiding election records. Wisconsin needs to be subject to the federal election transparency law. Concealing the election process from the public encourages disinformation and distrust.”

Wisconsin is one of 23 states and the District of Columbia that allows voters to register and cast a ballot on the same day, according to the National Conference of State Legislatures. Individuals registering to vote on Election Day in Wisconsin must present acceptable photo ID. 

While leftist voting activists say same-day registration bolsters voter turnout, election integrity advocates argue the allowance opens the door to election administration chaos and fraud.

‘Matters of Great Public Importance’

Same-day voter registration does come with mandatory safeguards in the Badger State, including a review or audit to determine the validity of the same-day registrant’s address. Election officials must identify which registrations should be inactivated and referred to law enforcement for investigation of voter fraud.  

After each election, WEC is required to mail postcards to all voters who used same-day registration. If the postcards are returned to local clerk offices as “undeliverable,” election officials must investigate the failed return. If they cannot identify a delivery problem within the U.S Postal Service or a typo in the address in need of correction, clerks are required to inactivate the voter name and refer the matter to the local district attorney for further investigation.  

According to the lawsuit, the Elections Commission in February 2023 issued the updated guidance to local clerks, describing the “circumstances under which clerks should and should not cancel voter registration records and circumstances under which clerks should and should not refer registrants to district attorneys for further investigation.” 

“The Guidance thus concerns the right to vote and election crimes, matters of great public importance,” PILF states in its petition for a writ of mandamus, asking the Dane County judge to order WEC to release the requested records. 

‘Public Records System was Failing’ 

PILF’s Logan Churchwell sent a public records request on Sept. 15, 2023 seeking the records, the lawsuit states. He sought copies of communications between WEC and local clerks, communications between the commission and legislative offices “regarding the development and execution of the guidance to date,” and communications between the regulator and nongovernmental organizations and third parties about the guidance. 

While Churchwell received a rapid acknowledgement from the agency that it had received his records request, the foundation received no further communication. Nearly a month later, Churchwell asked for an update. Silence. Two weeks later, he sent another request for an update on the status of his filing. WEC failed to respond again. In mid-November, PILF received an email from a commission attorney, who said the “public records system was failing to send message alerts to appropriate staff,” according to the complaint. The WEC attorney advised Churchwell to communicate with him via his WEC email but advised that the agency had a backlog of more than 60 requests and the foundation’s was toward the back of the line. The attorney also wanted PILF to include more information in its request, although such information is not required under state open records law, the complaint states. 

Near the end of the year, the commission finally responded with preliminary results showing nearly 7,300 “responsive” documents, or records that were relevant to PILF’s requests. But the delays and stonewalling, the complaint notes, went on and on. 

“As of the date of this Petition, WEC has failed to fulfill the Foundations’ Request, deny the Request, explain its delay, ask for further clarification, or provide an update or a timeline for responding,” the lawsuit states. 

Wisconsin’s open records law makes clear that “[e]ach authority, upon request for any record, shall, as soon as practicable and without delay, either fill the request or notify the requester of the authority’s determination to deny the request in whole or in part and the reasons therefor.” 

“[C]ompliance at some unidentified time in the future, is not authorized by the open records law,” the statute states.

The lawsuit argues that because WEC has failed to fulfill the request or explain why it cannot in a timely fashion, PILF is entitled under law to “bring an action for mandamus asking the court to order release” of the records. 

‘This is Bad’

As The Federalist reported earlier this year, the foundation filed a separate federal lawsuit against Wisconsin’s special exemption from the National Voter Registration Act’s public disclosure provision. The lawsuit alleges the carveout for Wisconsin violates the principle of equal state sovereignty and should be declared invalid. 

In April, PILF filed a complaint alleging Green Bay’s city clerk, Celestine Jeffreys, ignored laws aimed at detecting abuse of the Badger State’s same-day registration process. Jeffreys ultimately acknowledged that “she has not been strictly adhering to the statutory requirements in Wisconsin Statutes … but the failure to do so was inadvertent and due to a lack of awareness of the statutory requirements.” 

In other words, she didn’t understand the law on vetting same-day voter registrants that she is obliged to follow. 

“This is bad,” said Lauren Bowman Bis, PILF’s director of communications, told The Federalist in May. “People need to have faith and trust in their elected officials. For her to not be following the law, not even knowing the law, … is unbelievable.” She added that Jeffreys’ failure to inactivate the individuals on the undeliverable list “could be easily used for fraud and abuse.” 

“It’s not often you have an elected official admit she doesn’t know the law,” the spokeswoman said. “Wisconsin is a critical state [in the 2024 election] … This doesn’t just affect the people in Green Bay or Wisconsin. We all want faith in our elections, that the rules are being followed. In Green Bay, that’s not the case.” 

Jeffreys has a history of trouble with election law. In December, the state elections commission found that Jeffreys violated election law in the 2022 spring election when she accepted multiple absentee ballots brought in on behalf of voters.

For more election news and updates, visit electionbriefing.com.

Matt Kittle is a senior elections correspondent for The Federalist. An award-winning investigative reporter and 30-year veteran of print, broadcast, and online journalism, Kittle previously served as the executive director of Empower Wisconsin.