Justice Daniel Kelly says he may participate in voter rolls case after initially stepping aside

MADISON - State Supreme Court Justice Daniel Kelly said Wednesday he might participate in a case over removing people from the voter rolls after initially stepping aside from it to avoid the appearance of a conflict of interest.   

The conservative justice made the comments Wednesday in an interview with the Capital Times shortly after those bringing the lawsuit asked the Supreme Court to review the case. He said he might be able to participate in the case because it won't be decided until after his election next month.  

"Consistent with my oath and obligation to sit on every case that I can, I’d certainly consider it," Kelly said of participating in the case after initially recusing himself from it.  

His participation in the case could prove to be significant. The justices split 3-3 in January on whether to accept the case before an appeals court had fully vetted it.

The rare tie vote happened after Kelly decided not to participate in deliberations on the case because his name is on the April 7 ballot. He said some might view it as a conflict for him to rule on a case that would determine the voter registration status of thousands of people who might want to vote in that election.    

But on Wednesday he suggested he might be able to take part in the case if it won't be decided until after the election.   

If "the reason for recusal is no longer there," he would "just have to reconsider at that point," Kelly told the Capital Times. 

Kelly faces Dane County Circuit Judge Jill Karofsky, who has won backing from liberals. She said she would stay out of the case if she were in Kelly's position. 

"If it were me — and I am deeply concerned about any appearance of impropriety — I would get off of the case and make sure I was off the case so that it didn’t look like I was trying to make a decision that I would benefit from," she said in an interview

Karofsky made those comments shortly before the Capital Times published its story. After it did, Karofsky spokesman Sam Roecker issued a statement that said: "Dan Kelly jumps at any opportunity to side with the right-wing special interests backing his campaign, so of course he’s going back on his word."

Request for fast track

Those bringing the lawsuit asked the high court to put the case on the fast track Wednesday but said they knew it couldn't be decided before the April 7 election. 

"Plaintiffs do not ask that this court act prior to the April election," attorney Rick Esenberg wrote in his filing. "There is simply not enough time for that. But the plaintiffs do respectfully request that this court expedite its review of this petition, and if granted, issue an expedited schedule for briefing and oral argument." 

Typically justices stay off a case once they have recused themselves, but court ethics rules let judges and justices decide for themselves when to participate in cases.

While the election is next month, the 10-year term on the court won't begin until August. That means Kelly will remain on the court until at least then, regardless of who wins the election. 

If Kelly loses, he suggested he would participate in the voter rolls case. 

"I wouldn’t see any reason to not honor the oath that I took to sit on all the cases that came before us" if he lost, he told the Capital Times. "So hopefully I won’t have to face that question." 

The case centers on more than 230,000 voters who election officials believe have moved. And it comes as all sides closely watch Wisconsin, which is expected to be a linchpin in this fall's presidential campaign. 

The state Elections Commission sent letters in October asking those who were suspected of moving to update their address or confirm they still lived at the same place. The commission planned to remove people from the voter rolls if they did not respond in 2021 — after this fall's presidential election. 

Three men from suburban Milwaukee represented by the conservative Wisconsin Institute for Law & Liberty sued in November, arguing the Elections Commission had to take people off the voter rolls if they had not heard from them 30 days after sending the letters.  

An Ozaukee County judge agreed and later found Democrats on the commission in contempt of court for not taking people off the rolls.

But the District 4 Court of Appeals in Madison reversed that decision last month, saying the law requiring voters to be taken off the voter rolls applies to local election clerks, not the state commission. The appeals court also overturned the contempt finding. 

Wednesday's filing with the high court is a repeat of the earlier attempt to get the case to the justices. With the first try, the plaintiffs sought to have the Supreme Court take the case before the appeals court had issued a final ruling.

That effort failed because of the deadlock that resulted when Kelly stepped aside. 

Conservative Justice Brian Hagedorn sided with the court's two liberals, Justice Ann Walsh Bradley and Rebecca Dallet, in saying the high court shouldn't take the case. The court's other conservatives, Chief Justice Patience Roggensack and Justices Rebecca Bradley and Annette Ziegler contended the Supreme Court should have taken the case at that time.

The majority didn't explain why it didn't want to take the case initially. It's uncertain if Hagedorn will stick with the liberals now that the appeals court has issued its final ruling. 

If voters are ultimately removed from the rolls, they can reregister to vote online at myvote.wi.gov, at their clerk's offices or at the polls on election day. Voters can also use that state website to check their registration status and find out if they have been flagged as possibly moving. 

The case is being watched nationally because of its potential effects on turnout in the presidential election in a battleground state. In 2016, Republican Donald Trump narrowly beat Democrat Hillary Clinton. 

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.