A Waukesha County judge who ordered a review of the citizenship status of millions of Wisconsin voters has stayed part of his ruling while the case is appealed, though much of his decision remains in effect.

The Friday decision from Waukesha County Judge Michael Maxwell directs the Wisconsin Elections Commission to cross-reference the state’s voter registration list against Department of Transportation records, which include a person’s citizenship status when they applied for a driver’s license or identification card. In a follow-up order issued Monday, Maxwell left that portion of his ruling intact.

His Friday ruling also initially barred the commission and local clerks across Wisconsin from registering any new voters without proof of citizenship. Maxwell stayed that part of the order Monday, meaning he put it on hold.

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The Wisconsin Department of Justice, which is representing the Wisconsin Elections Commission and Department of Transportation, is appealing the initial decision. A hearing is set for Oct. 31.

The ruling comes as President Donald Trump’s administration is suing multiple states, including Minnesota, for voter registration data in an effort to ensure voter rolls are “clean.”

Wisconsin DOJ: Judge’s decision would require ‘massive overhaul’

In a motion filed Monday, the Wisconsin Department of Justice argued Maxwell’s ruling “purports to require a massive overhaul of Wisconsin’s voter registration system” without explaining what citizenship verification would entail. The state DOJ said those kinds of changes would take “months of development and testing.”

Maxwell agreed in part on Monday and allowed the commission and local clerks to register new voters under existing law until he rules on the DOJ’s motion to stay the entire ruling pending appeal.

The DOJ said Maxwell’s order would have required the commission’s electronic voter registration system to be “disabled” while changes are made, which “would, in turn, violate state laws” requiring the commission to maintain its voter registration system and would “further contravene the rights of electors who wish to register electronically as guaranteed by the Legislature.”

“The impact would be enormous: Wisconsin receives an average of more than 200 online voter registrations per day,” the DOJ motion said.

The lawsuit that led to the Friday ruling was filed weeks before the November 2024 election by attorneys Michael Dean and Kevin Scott. Dean was involved in a lawsuit seeking to overturn Trump’s 2020 election loss in Wisconsin. 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 Trump’s loss.

In the current case, Dean and Scott represent plaintiff Ardis Cerny, who has long been active in challenging state election practices. Their lawsuit argues about one-half of 1 percent of people who applied for voter ID cards through the Wisconsin Department of Transportation over the last decade were denied because of fraud or ineligibility. During arguments, Dean and Scott argued that meant there could be 10,000 or more ineligible voters on the rolls.

The Wisconsin DOJ argued that because drivers licenses and ID cards are generally valid for eight years, some people who become naturalized citizens during that timeframe could be disenfranchised.

The DOJ also argued the data matching requested by Cerny and her attorneys isn’t authorized by state law. In his ruling, Maxwell called the argument a “tortured reading” of state statutes.

“Petitioners have a clear legal right to not have their votes diluted by a non-citizen casting an unlawful ballot,” Maxwell said. “Further, WEC has a plain and positive duty to ensure that only U.S. citizens may be registered to vote in Wisconsin and therefore only U.S. citizens may appear on Wisconsin voter rolls.”

A spokesperson for the WEC told WPR the commission is unable to comment on Maxwell’s decision “as it pertains to litigation that is ongoing.”

How the decision is interpreted by local clerks could vary from one community to the next. On Monday, a statement from Madison City Clerk Lydia McComas said her office is “waiting on guidance from the WEC before we take any action.”

“We plan to comply with state guidance once received,” she said.

Voters fill out ballots during a presidential election Tuesday, Nov. 5, 2024, at Washington Park Senior Center in Milwaukee, Wis. Angela Major/WPR Plaintiffs say lawsuit is about trust

In an interview with WPR, Scott said the WEC’s bipartisan commissioners seem to have “only gone one way on basically all election issues” and have defaulted to the position that “hopefully, the right people vote” while leaving to local clerks and applicants to “self-police” the citizenship requirement.

“And I think that’s something that was frustrating to a lot of election integrity advocates,” Scott said.

As for the DOJ’s argument regarding potential for naturalized citizens being booted from the voter rolls based on outdated DOT information, Scott said the lawsuit never called for people to be removed from the voter registration list.

“But at the same time, if somebody is somehow a citizen and they mistakenly get removed from the voter rolls, they’re always able to reregister,” Scott said. “And it’s a very simple process you can do online in five minutes.”

Maxwell’s ruling gives the WEC 60 days to report back on how it plans to verify the citizenship of Wisconsin’s registered voters. Scott said that should be a bipartisan goal. 

“Let’s try to get a system in place where all the citizens of the state of Wisconsin can be assured that their voter rolls are accurate,” Scott said. “And that way, we can trust the results of our elections.” 

State law already bans voting by people who aren’t citizens

Bryna Godar, a staff attorney with the State Democracy Research Initiative at the University of Wisconsin-Madison, told WPR that even though Maxwell’s ruling mentions matching voter registration records with data from the DOT, it “does not explain how U.S. citizenship verification would take place.”

“There already is a process in place for verifying citizenship,” Godar said. “Presumably, the court is asking for something in addition to that, but it didn’t actually specify in its opinion what that process would be, and so that leaves things a little bit up in the air for what it will mean going forward, if this opinion and order is allowed to stand.”

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.

Two weeks before Maxwell’s ruling, the U.S. Department of Justice announced it is suing six states, including Minnesota, for failing to provide voter registration lists to the federal government. In a statement, U.S. Attorney General Pam Bondi said “clean voter rolls are the foundation of free and fair elections.”

UW-Madison political science professor Barry Burden told WPR there’s been a “longstanding concern about noncitizens being able to register or cast ballots” in Wisconsin and other states.

“And that has been amped up by rhetoric, especially from Donald Trump since he first ran for president in 2015, even though there’s very little evidence of noncitizens doing this with much regularity,” Burden said.

In April 2024, the Wisconsin DOT told PBS Wisconsin it had issued more than 258,000 driver licenses and 41,000 ID cards to noncitizens since 2019. But the WEC also told PBS that there have been just three noncitizens referred for prosecution for voting illegally since 2019.

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