Justice Daniel Kelly Will Lift Recusal In Voter Purge Case

State Supreme Court Justice Daniel Kelly announced Wednesday he would lift his recusal in a case that could purge up to 200,000 names from Wisconsin’s voter list.

Kelly, who lost his bid for a 10-year term on the court to Judge Jill Karofsky, had stayed out of the case while he was a candidate, saying it could have influenced his own election. With that race now behind him, he indicated in a brief order Wednesday that circumstances had changed.

“I, like every other justice on this court, have an affirmative duty to hear every case in which there is no ethical bar to my participation,” Kelly wrote. “I have concluded that, in light of the fact that this case cannot now affect any election in which I would be a candidate while the case is being decided, there is no ethical bar to my participation.“

Kelly is part of the current 5-2 conservative majority on the Wisconsin Supreme Court, where he’ll continue to serve until his term ends July 31. Once Karofsky is sworn in, the conservative majority will be trimmed to 4-3.

Kelly’s recusal from the voter purge case had tangible consequences in December, when the court deadlocked 3-3 on whether to hear the case on an expedited appeal. In that ruling, conservative Justice Brian Hagedorn joined liberal justices to prevent the court from taking the case immediately.

The case at hand stems from a lawsuit brought last year by the conservative Wisconsin Institute for Law and Liberty (WILL). At issue are more than 200,000 people who were flagged as having potentially moved by a multi-state system that compares registration data to records from other government agencies, like state departments of motor vehicles.

The Wisconsin Elections Commission originally sent a piece of mail to those voters alerting them they had been identified by the system, but under the state’s original plan, none of the names would be automatically purged until 2021.

WILL argued that state law did not give the Elections Commission discretion to wait on purging its voter list. Ozaukee County Judge Paul Malloy agreed and ordered the names removed from Wisconsin’s voter list immediately. When the Wisconsin Elections Commission did not immediately comply, Malloy tried to hold some of its members in contempt of court.

A state appeals court intervened, blocking Malloy’s initial ruling and his contempt order in January and ruling in February the state had no “positive and plain” duty to deactivate voters.

WILL appealed that ruling to the Wisconsin Supreme Court, where Kelly could now join other justices to hear the case this time around.

Kelly announced on April 15 he was considering lifting his recusal and gave all parties in the case until April 22 to weigh in on whether he should hear the case. He said Wednesday that no party had objected, although even if they had, the final decision rested with him.

Kelly was appointed to the Wisconsin Supreme Court by former Republican Gov. Scott Walker in 2016. He was the first incumbent to lose a Supreme Court election since 2008.

Kelly has a history with WILL, having served briefly on the group’s litigation advisory board about a decade ago.