MILWAUKEE (CN) - The Seventh U.S. Circuit Court of Appeals heard oral arguments on Thursday on the constitutionality of Wisconsin's exemption from the transparency requirements of the National Voter Registration Act of 1993.
The Public Interest Legal Foundation is an election watchdog organization that monitors state voter rolls to ensure they are up-to-date and accurate, according to its website.
In January 2024, the nonprofit requested Wisconsin's voter registration list with voters' birth years. Wisconsin Election Commission administrator, Maegan Wolfe, directed the group to the public records portal in February, where the list costs $5 per 1,000 voters, capped at $12,500.
The foundation called the fee unreasonable and accused Wolfe of violating federal election law requiring states to provide voter rolls at a reasonable cost upon request, although Wisconsin has a contentious exception.
The nonprofit sued Wolfe in April 2024 under the National Voter Registration Act; however, the Western District of Wisconsin federal court sided with election officials. The group appealed, and on Thursday, a Seventh Circuit panel, including Judges Diane Sykes, Frank Easterbrook and Michael Brennan, weighed the scope and constitutionality of Wisconsin's exemption from the law's transparency requirements.
Congress passed the 1993 act to guide states on elections and voter registration, requiring them to keep accurate voter registration information and make it available to the public at a reasonable cost.
States that allowed election day voter registration when the act became law or didn't require registration at all are exempted from the Act's transparency requirements, including Wisconsin, North Dakota, Minnesota, Wyoming, Idaho and New Hampshire.
Assistant Wisconsin Attorney General Brian Keenan argued that applying the same transparency rules to those states would be impractical, since their voter rolls are constantly changing.
Attorney Andrew Braniff, representing the United States Civil Rights Division, agreed with Keenan and added that it doesn't make sense to apply other parts of the voter registration act, like the halt on inactive voter purging 90 days before an election, because they can simply re-register when they arrive at the polling place.
"The NVRA is in itself a jigsaw," Braniff said. "All the pieces fit together, and the pieces simply don't work if you apply them to states that have same day registration processes."
The nonprofit does not dispute Wisconsin's exempt status. Instead, it claims that the act's exemption is facially unconstitutional because it does not apply the same requirements to every single state.
It asks the court to sever the exception completely or force the federal government to provide justification for the unequal regulation.
"Imagine a constitutional architecture where Congress may wield the elections clause's preemptive power to pick and choose winners and losers, to reward allies and scald foes, to favor some states and punish others, or to favor some voters and punish others," the nonprofit said in its 95-page brief.
Chief Judge Diane Sykes cut in during Johnson's argument to this effect to wipe out any hint that this one was a partisan issue.
"Same day registration doesn't have a partisan balance to it. It's just not that kind of an issue. It's just pro-democracy, so I don't think this is a sort of 'punish your enemies, support your allies thing," Sykes said.
Johnson rolled his language back, pivoting to say that, of course, the issue he brings is not partisan today, but it could become so later.
The nonprofit argued the exemption is outdated and discriminatory, saying if half the states are excluded, the act needs updating.
It cited the principle of "equal state sovereignty" from the Supreme Court's decision in Shelby County, Alabama v. Holder, which struck down unwarranted and burdensome statutes for certain states.
Sykes took issue with this argument, as well.
"The remedy you're seeking is the invalidation of the exemption that benefits Wisconsin because of its very liberal voter registration laws, which was the compromise that Congress struck in the voter registration act," Sykes said. "This is a unique application, we have to agree, of the equal sovereignty principle because you're seeking to impose a burden on Wisconsin that it's otherwise clearly exempt from under federal law."
Western District of Wisconsin Judge James Peterson, a Barack Obama appointee, stated that the nonprofit's claims fail as a matter of law because the equal sovereignty principle is applied to eliminate burdensome laws, not impose new ones.
Whether the panel's decision will make it to the case's merits is unclear. The court repeatedly questioned whether the foundation had standing to bring the case at all, since no violation of the voter registration act actually occurred.
Source: Courthouse News Service
