Lawsuit: WI Fails To Use Tools To Keep Noncitizens Off Voter Rolls

With just over two months to go before Election Day, swing state Wisconsin’s elections regulator is being accused of failing to verify the citizenship of registered voters, leading to potentially thousands of “registrants unlawfully included on” the Badger State’s voter rolls. 

A recent lawsuit filed in Waukesha County Circuit Court by Pewaukee resident and longtime election integrity activist Ardis Cerny alleges the Wisconsin Elections Commission (WEC) and the Wisconsin Department of Transportation are failing to do their duty to verify the citizenship of applicants registering to vote. That includes matching “DOT’s citizenship information against [voter] registrant information in the WisVote list,” the state’s voter registration database. Doing so is critical in verifying the accuracy of the citizenship information provided by applicants on — or coming onto — the voter rolls, the lawsuit asserts.  

Cerny, represented by Wisconsin election law attorneys Michael Dean and Kevin Scott, argues that the WEC and the DOT have violated her voting rights and those of her fellow legally qualified and registered voters. As a Wisconsin taxpayer, Cerny also asserts the government agencies are unlawfully spending state tax dollars in failing to use all available data tools to verify the eligibility of individuals registering to vote. 

She is seeking a writ of mandamus, a court order demanding the election regulator and the DOT do their jobs under state election law.  

“[Cerny] and other legally qualified and registered eligible Wisconsin electors have rights to cast their votes in free and transparent elections without cancellation by unlawful ballots cast by non-citizens or other unqualified voters,” the lawsuit charges. 

“As with all fundamental rights, deprivation of those rights is irreparable injury,” the complaint further states, referring to a 1976 U.S. Supreme Court ruling involving the Democrat Party political machine in the Cook County, Illinois, Sheriff’s Office threatening to fire non-civil service employees who were Republicans. 

As the lawsuit notes, “Qualification, registration, and identification (‘ID’) are the three basic requirements to cast a legal vote in Wisconsin federal and state elections.” The complaint contends the Dairy State is falling down on the job in ensuring all of the requirements are being met.

With a crush of illegal immigrants pouring into the United States on the watch of President Joe Biden and his “border czar,” Vice President Kamala Harris, election integrity watchdogs and lawmakers have raised alarms about the potential of foreign nationals illegally voting in November’s presidential election. Democrats have attempted to block efforts by House Republicans to make proof of U.S. citizenship a requirement to vote in federal elections. Voter registration at the federal level and in the battleground Badger State is an honor system, putting blind faith in the people who register to vote that they are who they say they are — that they are from where they say they are from.

‘Absent Statutory Authority’?

Among its allegations, the Waukesha County lawsuit charges that the Wisconsin Elections Commission is failing to verify citizenship of applicants before adding their names to the WisVote list as a “legally qualified elector.” 

The problem is, according to the complaint, the state DOT’s Department of Motor Vehicles already does the work of verifying the citizenship or other legal status of individuals when they apply for driver’s licenses or IDs for voting. They just don’t share information on citizenship, and the WEC doesn’t seek it. 

In a letter responding to state lawmakers, DOT Secretary Craig Thompson wrote that such information is private. 

“WisDOT and WEC have a current agreement to carry out the matching program described in” Wisconsin statute, Thompson explained in his July 16 letter to state Sen. Dan Knodl and Rep. Scott Krug, Republicans and chairmen of the legislature’s election committees. “To ensure compliance with the Help America Vote Act, this matching program is statutorily limited to the personally identifiable information on the official registration list. … Citizenship information is not included in this list, so it is ineligible for the matching program and not a part of the current agreement.”

Thompson insists his agency’s hands are tied. 

“Absent statutory authority to verify citizenship data via the online registration system, WisDOT cannot share this information,” the secretary wrote. 

That’s not correct, the lawsuit contends. There is statutory authority. The complaint argues that Thompson’s letter ignores U.S. code, which states that the term “‘person’ … does not include a State or agency thereof.” In short, people may not be able to turn over private information, but government agencies may share such information with each other. Another federal code on “Permissible Uses” states that “Personal information … may be disclosed … (1) For use by any government agency … in carrying out its functions. …”

What function is more important in the pursuit of free, fair, and transparent elections than making sure that only eligible voters vote? 

Wisconsin statute, the lawsuit asserts, requires the WEC and the DOT to match “personally identifiable information in their databases” to “verify the accuracy of the information provided for the purpose of voter registration.”

‘Baseless’ Privacy Claims

What is so frustrating to election integrity advocates is that the Department of Motor Vehicles has real-time information on the citizenship status of individuals in its database, but the DMV and the WEC are not communicating. 

In late June, “Knodl and Krug requested DOT’s list of permanent non-citizen Wisconsin residents who had obtained a driver’s license or ID card” under state law, according to the lawmaker’s letter. Thompson again refused.  Again, he cited privacy laws. 

“WisDOT driver record information is subject to the federal Driver Privacy and Protection Act (DPPA). Requesters authorized under the DPPA may submit an MV2896 to request driver records for certain permitted uses. The DPPA is enforced by the U.S. Department of Justice, which can seek civil and criminal penalties for improperly obtaining, disclosing, or using personal information from a motor vehicle record for a purpose not permitted by the DPPA.”

“Given these restrictions on information sharing under Wisconsin law, WisDOT cannot collect and provide these records,” the DOT secretary added. 

The lawsuit alleges Thompson’s reference to the DPPA’s disclosure restrictions is “baseless” because it ignores the full meaning of who can share identifying information. 

Agencies have long tried to make dubious privacy claims in failing to share information. In fact, several years ago I was a plaintiff in a Wisconsin open records lawsuit against the Jefferson County Sheriff’s Department, which refused to turn over public records, citing the Driver’s Privacy Protection Act. The lawsuit noted more than a dozen exceptions to the law that allow the government to disclose information. The county settled, agreeing to release unredacted records and to pay legal fees. 

Interestingly, the Waukesha County complaint mentions that the Government Accountability Board, Wisconsin’s former election and campaign finance regulator, noted the need to use shared data to confirm citizenship status a decade ago. The disgraced GAB was disbanded after it was at the center of a yearslong unconstitutional investigation into Wisconsin conservatives that the Wisconsin Supreme Court described as a “‘perfect storm’ of wrongs” visited on the victims of the secret probe. But even the abusive GAB understood the constitutional importance of ensuring noncitizens are not on the voter rolls.  

Honor System

The Wisconsin Elections Commission allows voter registration applicants to simply sign a statement that they are or will be qualified to vote at the time of the election, according to the lawsuit. While the Department of Motor Vehicles requires “certification of fact under penalty of perjury that the citizenship and other information a license or ID applicant provides is true,” the complaint states, there is no such requirement on the WEC form. Instead, the document “requests only that a registration applicant check a box that she is citizen, then sign a certification that ‘to the best of my knowledge’ she is qualified to vote and that ‘I may be subject to fine or imprisonment’ for providing false information.” 

The WEC’s online MyVote registration form doesn’t require that the registrant attest to being qualified to vote, under penalty of perjury. The state elections regulator, according to the lawsuit, has no procedures to require documentary proof of citizenship to be registered to vote. It does have such authority, the complaint contends, because Wisconsin is one of six states exempt from the National Voter Registration Act. 

“Even if Wisconsin were not exempt from NVRA, Respondents are still authorized to verify applicant’s citizenship,” the lawsuit states. 

Wisconsin Elections Commission spokesmen did not return The Federalist’s requests for comment. The WEC and the Department of Transportation each denied the allegations and argued that Cerny is not entitled to “any relief whatsoever.” The defendants, represented by Wisconsin’s Democrat-led attorney general’s office, seek to dismiss the petition with prejudice, according to court documents filed Tuesday afternoon.

10,000 ‘Unlawfully Included’ 

As the complaint notes, the WEC has admitted that “illegal registrants” are included on Wisconsin’s voter registration rolls. According to an affidavit, the commission and agency administrator Meagan Wolfe lamely denied that the state’s voter registration list “contains only electors who are properly registered to vote because the Wisconsin Statutes contemplate challenges ‘to the registration of any other registered elector.” As the bureaucrats acknowledge, “[T]he Registration List contains the names of some people who are not properly registered to vote or no longer properly registered to vote.” 

Tellingly, the WEC denies that state law requires the agency to ensure the voter rolls are devoid of “electors who are properly registered to vote,” according to the commission’s response to Cerny’s original complaint. The WEC dismissed the complaint on grounds that it could not investigate itself, so Cerny filed the lawsuit. 

A DOT official testified that over the past decade the DMV has issued more than 11,000 free voter IDs. The department canceled 53 applications because of fraud or ineligibility, with 23 of those cases referred to law enforcement. In nine fraud cases, “a voting receipt was actually issued before DMV canceled the application,” the lawsuit states. 

Extrapolating the DMV numbers, Dean, the attorney for Cerny, conservatively estimates that there were more than 10,000 registrants “unlawfully included in the WisVote list” over the period. 

“But registration applicants know that WEC and municipal clerks will never verify citizenship, so there is virtually no meaningful consequence or disincentive for anyone falsely certifying U.S. citizenship in order to register and vote,” the complaint alleges. 

Local election officials say they would welcome help on verification. At a joint legislative hearing in May, “Washington County Clerk Ashely Reichert testified that municipal clerks would like to have resources available for real time verification of voter registration applicants’ citizenship to ensure that they (the clerks) are not unlawfully registering non-citizens to vote,” the complaint states.

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.