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.

A judge ordered the Wisconsin Elections Commission to verify the citizenship of all voters in time for the next election in February, and determine whether any noncitizens are registered. (Photo by Alex Shur / Votebeat)

This article was originally published by Votebeat, a nonprofit news organization covering local election administration and voting access.

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What happened?

A Waukesha County judge on Friday ordered the Wisconsin Elections Commission to determine whether any noncitizens are registered to vote and to stop accepting voter registrations without verifying that the applicant is a U.S. citizen.

What’s the dispute?

A Pewaukee resident, represented by conservative attorneys, filed a lawsuit last year seeking to require the election commission to verify citizenship of registered voters and applicants. The suit also sought to force the Wisconsin Department of Transportation to compare its citizenship information against voter rolls.

The election commission opposed the initial request, saying that no state law called for requiring documented proof of citizenship. It also argued that the DOT has no obligation to match citizenship data with voter records.

Waukesha County Circuit Court Judge Michael Maxwell rejected the commission’s argument, saying that the agency is failing in its duty to ensure that only lawful voters make it to the voter roll. He cited several statutes that he said made clear that only citizens could cast a ballot.

Maxwell didn’t specify how the election commission and local clerks should verify citizenship of new registrants, or how the commission should check for noncitizens on the voter rolls. He only called for the parties to figure out a plan, whether that be through matching the DOT’s citizenship data or using “other lawfully available means.” He called for that process to be substantially completed before the next statewide election, which is February.

Currently, applicants for voter registration in Wisconsin and most other states must attest, under penalty of perjury, that they are U.S. citizens who are eligible to vote, but they are not required to present proof of citizenship.

The issue of noncitizen voting has been hotly debated in recent years, though no widespread instances have been found. Republicans have used the concern to call for citizenship proof checks of all voters, even as data shows that such measures risk disenfranchising some U.S. citizens.

Republicans praised the decision, with state Rep. Amanda Nedweski calling it a “great win for election integrity.”

Democrats and the respondents in the case were largely mum.

Election commission spokesperson Emilee Miklas didn’t immediately respond to a request for comment. Riley Vetterkind, a spokesperson for the Wisconsin Department of Justice, which represents the commission and Department of Transportation, declined to say whether the agencies would appeal the decision.

Who are the parties?

The current plaintiffs, Pewaukee resident Ardis Cerny and Waukesha resident Annette Kuglitsch, sued the election commission, Department of Transportation, and officials in both agencies. They have argued that the election commission is violating their voting rights by not checking for noncitizens already registered to vote and seeking to vote.

Maxwell agreed, saying they “have a clear legal right to not have their votes diluted by a non-citizen casting an unlawful ballot.”

What happens now?

It’s unclear how the commission would verify the citizenship of all of Wisconsin’s registered voters by February. Bryna Godar, a staff attorney at the University of Wisconsin Law School’s State Democracy Research Initiative, said the decision will “definitely be appealed” and that the lower-court decision could be stayed while the appeal goes through the courts.

If the case reaches the Wisconsin Supreme Court, the liberal majority could overturn the order of the conservative-leaning Waukesha County Circuit Court.

Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Alexander at ashur@votebeat.org.

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