Weeks before election, lawsuit seeks to change Wisconsin’s citizenship screening process for voting

Two lawyers involved in efforts to reverse President Joe Biden’s 2020 victory in Wisconsin are asking a judge to create a new system for checking people’s citizenship for voting.

The lawsuit, which comes just weeks before Election Day, asks Waukesha County Circuit Court Judge Michael Maxwell to order the Wisconsin Department of Transportation and the Wisconsin Elections Commission to cross-reference data for millions of residents on Wisconsin’s voter registration list before the Nov. 5 election. If any noncitizens are found on the voter rolls, the suit wants them removed.

Wisconsin attorneys Michael Dean and Kevin Scott brought the lawsuit on behalf of Ardis Cerny of Pewaukee, who was part of a group of observers overseeing former President Donald Trump’s recount following his 2020 loss to President Joe Biden. That year, Dean was involved in a lawsuit seeking to overturn the election results. Both he and Scott also worked for former Wisconsin Supreme Court Justice Michael Gableman, who headed an investigation into the 2020 results and suggested the Wisconsin Legislature could decertify Biden’s win. 

The lawsuit claims around one-half of 1 percent of people who applied for voter ID cards over the last decade were denied because of fraud or ineligibility. Dean and Scott contend that given that rejection rate, there could be around 10,000 illegally registered active voters statewide, and Dean suggested during a lengthy court hearing Thursday that the number could be higher.

When Judge Maxwell asked Dean why he should order the data matching and potential deactivation of voter registrations now, fewer than 20 days before this year’s presidential election, Dean said the state needs to verify voter citizenship status before Election Day. 

“Can you imagine the firestorm that is going to be created if, in fact, we find out after the fact that the election was decided by a margin consisting of noncitizen votes?” Dean said. “That’s what I want to prevent.”

The Wisconsin Department of Justice, which is representing the WEC and the DOT, argues the type of data matching Dean is asking for is not authorized by state law. The DOJ also argued that while the suit references concerns over “illegal immigrants” voting, the DOT only has outdated data on people who are in the state legally but haven’t yet gained U.S. citizenship. Using that data, the DOJ argued, could lead to legal voters being disenfranchised.

DOJ Assistant Attorney General Lynn Lodahl also noted that drivers licenses and ID cards are generally valid for eight years, while the naturalization process is shorter than that.

“What we are concerned about is this data sweep that’s going to deactivate the voter registrations of U.S. citizens, people who are properly registered, less than 20 days before an election,” said Lodahl. “And this is going to be a problem because there are no statutory notice procedures in place to explain how these people are supposed to be notified and correct the error in advance of the election.”

Maxwell is now considering motions for an injunction filed by Dean and Scott along with a motion to dismiss the lawsuit filed by the DOJ. The injunction would compel the WEC and DOT to cross-reference citizenship data with voter registration records and deactivate any noncitizen on Wisconsin’s voter rolls.

In an election cycle where immigration has been a top issue for Republican voters, the prospect of noncitizens voting in Wisconsin and other states has become a political flashpoint for the GOP. Wisconsin voters will weigh in on a Republican-authored amendment to the state constitution that would specify that only U.S. citizens can vote in Wisconsin elections.

State and federal law already makes it illegal for noncitizens to vote. Those caught lying on Wisconsin’s voter registration can be convicted of a felony and face up to three-and-a-half years in prison and a $10,000 fine. 

According to the Migration Policy Institute, nearly 39,000 people in Wisconsin have become naturalized U.S. citizens between 2015 and 2022. In April, the Wisconsin DOT told PBS Wisconsin it has issued more than 258,000 driver licenses and 41,000 ID cards to noncitizens since 2019. But the WEC also told PBS there have been just three noncitizens referred for prosecution for voting illegally since 2019.