Wisconsin Privacy Law Conflicts With Duty To Prevent Illegal Voting

Sandra Klitzke suffered from cognitive decline for several years, and in February 2020 a court ordered that the elderly Grand Chute, Wisconsin nursing home resident was not cognitively competent to vote, according to a complaint filed with the Wisconsin Elections Commission.  

So why do Wisconsin voting records show Klitzke voted in the Nov. 3, 2020 presidential election and again in the Badger State’s April 6, 2021 spring election?

Despite the court finding Klitzke legally incompetent and ineligible to vote, the cognitively challenged woman was still registered and listed as active to vote in WisVote, the statewide voter registration database, according to the complaint. And yet, the WisVote records state that Klitzke, or someone on her behalf, requested and was sent an absentee ballot for the April 2022 election. 

Lisa Goodwin, Klitzke’s daughter and legal guardian, could not explain why the records indicated that her mother was still actively voting and requesting ballots. 

“Neither I nor any other member of my immediate family completed an absentee ballot for my mother,” Goodwin stated in the complaint.

Election law requires Wisconsin circuit court clerks to send notice to elections officials of individuals found to be ineligible to vote by reason of incompetence. But voting eligibility records related to court findings of incompetency are “barred from disclosure” under public records law.

Yet, the Wisconsin Elections Commission’s “inaccurate” voter registration data “allows ineligible voters to vote,” according to the complaint filed by the Wisconsin Voter Alliance (WVA), an elections watchdog. 

WVA’s president, Ron Heuer, has been trying for more than two years to get at just how many court-adjudicated ineligible voters are on the voter rolls — and just how often they’re casting ballots. 

The nonprofit organization’s efforts are at the core of a legal battle that pits claims of privacy against the public’s right to know about fraudulent voting in Badger State elections, and whether the government is doing its job. Wisconsin Supreme Court justices heard oral arguments this week in Wisconsin Voter Alliance v. Secord, a public records case with implications for a critical swing state’s elections and the limits of confidentiality. 

‘Clear Legal Right’

WVA has filed lawsuits in 13 Wisconsin counties seeking records of adjudicated incompetent individuals, or wards, found ineligible to vote. Judges in lower courts in Juneau and Walworth counties dismissed the open records requests. The elections watchdog appealed, losing its challenge in the liberal-led 4th District Court of Appeals in Madison and later winning in the conservative-leaning 2nd District Court of Appeals in Waukesha. 

WVA had no “clear legal right” to the records because they are tied to findings of incompetency, the 4th District judges ruled in affirming the Juneau County court’s decision. State law prohibits the release of such confidential information, the court determined. 

Not long after the Madison court published its ruling, the 2nd District issued a 2-1 decision that found WVA indeed has a “clear legal right” to the documents. “[A]cess to pubic records is a vital and internal factor in Wisconsin’s avowed presumption towards open government,” the majority wrote in the opinion overturning the Walworth County decision. 

“The legislature has expressly mandated its preferences for such open access with a statutory directive for the circuit court’s positive and plain duty to communicate voter eligibility determinations (regardless of whether a guardian is appointed) to local officials or agencies (accomplished based on direction of the Court System through WEC),” the appeals court ruling states. 

‘The System … Is Not Working’

Sam Hall Jr., the attorney representing Walworth County Circuit Court Clerk Kristina Secord in the case before the state Supreme Court, asserts the 2nd District’s decision “blasts open the door for the personal information of some of the most vulnerable people in our communities to be broadcast not only to those with noble and good intentions but to those who might seek to do these folks harm.” 

Hall told the justices that voting when classified as ineligible is a “Class I” felony and that there are plenty of avenues for the government to investigate incidents of adjudicated incompetent individuals illegally voting. Such investigations do not need to be conducted by private watchdog groups, the attorney argued. 

But WVA’s allegation is that the government is not doing its job in removing ineligible voters from the rolls, said Justice Rebecca Bradley, one of three conservative justices on the seven-member Supreme Court. 

“How are the people going to know it’s being done and hold their government officials accountable?” Bradley asked. 

Liberal Justice Rebecca Dallet scoffed at the idea that there is any proof “any person voted illegally or even was sent a ballot …” That notion doesn’t stand up to the facts. 

Erick Kaardal, attorney for Heuer and the WVA, opened his arguments to the court by reading from a March 2023 news story from left-leaning Wisconsin Watch underscoring the election integrity shortcoming. 

“The system for identifying those voters and getting them out of the voter rolls is not working,” Scott McDonell, clerk for far left Dane County, told the publication. 

As Kaardal told the court, McDonell reviewed more than 1,000 records and found 95 individuals who had cast ballots despite having been disqualified from voting by a court because of incompetency. Another 23 were listed as  registered voters in Dane County but had yet to vote as of the article’s publication. 

But the case before the state Supreme Court doesn’t concern Dane County, the leftist justices, who hold the majority, pressed. Seemingly lost in the arguments is the fact that the WVA has been unsuccessful thus far from obtaining records from Walworth County — hence the lawsuit against Walworth County. And Kaardal noted that the issue is a statewide concern. 

“I understand that Walworth County is different than Dane County but the Wisconsin Elections Commission is connected to all 72 counties through the WisVote database,” the attorney told the justices. “The state rightly requires Walworth County and all of the other counties to send notice of voter eligibility whenever someone is adjudicated incompetent and ineligible to vote.”  

What Happened In Wisconsin Nursing Homes? 

The election integrity cracks first came into full focus in October 2021 when Racine County Sheriff Christopher Schmaling announced a department investigation into allegations that nursing home staff had filled out ballots for nursing home residents. He said some of the residents were cognitively impaired, yet their absentee ballots were filled out. The sheriff sought charges against the Wisconsin Elections Commission, which, during Covid, ignored election law and issued guidance locking Special Voting Deputies out of the state’s nursing homes and assisted living facilities. The deputies are assigned to help eligible voters living in care facilities fill out their ballots. 

Racine County District Attorney Patricia Hanson ultimately declined to file charges, insisting that while she agreed with the substance of the case she lacked jurisdiction. Schmaling said he sought charges in Racine County because leftist Wisconsin Attorney General Josh Kaul refused to do anything with the allegations.

The Wisconsin Voter Alliance asserts there is a “dramatic difference in the number of ‘no vote’ orders issued by the circuit courts in most counties and those recorded in the state’s official voter database.”

“In Vernon County, the WisVote record of ‘no vote’ guardianships was only 39 percent of those issued by the county’s courts – and that was the county with most comprehensive recording of ‘no vote’ wards,” a July 2022 press release from the Thomas More Society noted. 

‘Trust me. We’re from the Government’

The bigger problem is that public record and election laws are in conflict. Proponents of keeping the names, addresses, and other identifying information of wards off limits to the public assert the law is on their side. 

But what happens when privacy concerns outweigh the public’s right to know, particularly when it comes to election integrity? 

“It sounds a lot like, ‘Trust me. We’re from the government. We fill out these forms and we must be doing it right. Don’t check us,’” Chief Justice Annette Ziegler said. 

Those on both sides of the issue agree there are holes in the law. The Republican-led legislature has passed a package of proposals that would have demanded courts notify the Elections Commission after an individual is adjudicated incompetent and no longer eligible to vote. Democrat Gov. Tony Evers vetoed the bill, as the far left executive has so often done with election integrity proposals. 

Like Evers, the liberal members of the Supreme Court openly showed their disdain for election integrity advocates during this week’s oral arguments. 

“I’m afraid, what it sounds to me like you are trying to do is to introduce the fear that there is some sort of illegitimacy going on in the elections in the state of Wisconsin, and that concerns me deeply,” liberal Justice Jill Karofsky scolded Kaardal.  

Justice Rebecca Bradley signaled her annoyance with Karofsky’s “election denier” rhetoric, asserting that when it comes to analyzing the statutes on records access, “It really doesn’t matter if you are in fact, ‘Trying to introduce fear into the legitimacy of elections,’ or if you are just trying to determine whether or not elections officials are doing their jobs in removing people form the polls who have lost their right to vote.” 

“Government conduct matters. This is a case involving government conduct,” Kaardal responded. “What we want is eligible people to vote, and people adjudicated by a circuit court judge ineligible to vote not to vote.” 

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.