Voting carrels set up at Madison's Hawthorne Library on Election Day 2022. (Henry Redman | Wisconsin Examiner)

The Wisconsin Department of Justice on Monday filed an appeal of a Waukesha County Circuit Court judge’s decision to require that state election officials conduct an intensive search for registered voters who aren’t citizens. 

Judge Michael Maxwell’s Oct. 6 ruling required that the Wisconsin Elections Commission cross reference its voter registration list against the state Department of Transportation’s records to determine people’s citizenship status when they applied for a driver’s license or state ID. He also ordered that WEC and local election clerks stop accepting new voter registrations without obtaining proof of citizenship — though that portion of the ruling was put on hold pending the appeal. 

Under current law, people registering to vote must affirm they are U.S. citizens but are not required to provide proof. However, lying about citizenship status while registering to vote is a crime. 

Fears of non-citizen voting have frequently been raised by Republicans in recent years who, since 2020, have expressed  skepticism of election administration. The initial Waukesha County lawsuit was brought by a pair of right-wing election conspiracy theorists. 

While claims of non-citizen voting revolve around the threat that the issue could swing an election result and occasionally cases are found and prosecuted, there is no evidence that non-citizens vote in substantial enough numbers to influence election results in Wisconsin or anywhere across the country. 

In the appeal, filed in the Madison-based District IV, the DOJ argued that the ruling “reshapes Wisconsin election law” while leaving many details vague and potentially violating other laws. 

“The circuit court’s decision and order drastically alters voter registration and elections in Wisconsin, violates state law, and threatens voting rights,” the appeal states.

Lead by Wisconsin Attorney General Josh Kaul, the filing states that Maxwell’s requirement to match data with Department of Transportation records would be based on data that’s up to eight years old, which could result in the disenfranchisement of people who were legal residents when they applied for their driver’s license but have since become citizens with the right to vote. 

The appeal also argues that Maxwell’s ruling orders local election officials to change their practices even though they weren’t a party to the lawsuit and does not outline what “proof of citizenship” election officials should use to register people to vote. 

“The court issued this sweeping relief despite no evidence of injury to Respondents: they speculated about the risk of vote dilution by illegal voters, but provided no evidence that a noncitizen had voted or registered to vote in Wisconsin,” the appeal states.

Boxes of ballots wait to be counted at Milwaukee's central count on Election Day 2024. (Henry Redman | Wisconsin Examiner)

A Waukesha County judge on Monday issued a temporary partial stay of his ruling in a case over how state election authorities verify the citizenship status of people registering to vote. 

The partial stay was issued after the state Department of Justice had requested that Judge Michael Maxwell hold up the entirety of his order pending an appeal. Oral arguments will be held Oct. 31 to determine if the rest of the order should be stayed. 

Maxwell ruled Friday that the Wisconsin Elections Commission and Department of Transportation have a duty to match citizenship records with the state’s voter registration system to determine that non-citizens are not registering to vote. In his order, he also required that state and local election officials stop accepting new voter registrations without checking citizenship status and that the parties in the lawsuit meet to determine a plan for checking the existing voter rolls for non-citizen voters. 

The Monday order that partially stayed the decision put a pause on the halt to accepting voter registrations. 

DOJ had argued that Maxwell’s order would require a “massive overhaul” of the state’s voter registration system and take months to implement, that the ruling doesn’t make clear what the citizen verification requirement actually entails and potentially violates state law requiring the elections commission to maintain the electronic voter registration system. 

Non-citizens are not allowed to vote. Current law requires that people seeking to register to vote attest under penalty of imprisonment that they are U.S. citizens. In Wisconsin, immigrants without legal documentation are unable to obtain a driver’s license and a state-issued photo ID is required to register to vote. 

Despite little evidence that non-citizen voters are casting ballots in large numbers, the issue has been repeatedly raised by Republicans in recent years — particularly since President Donald Trump falsely claimed that the 2020 election was stolen from him, and among Republicans who are already skeptical of the election system as a whole.