Progressive PAC fights Wisconsin absentee voting rules

MADISON, Wis. (CN) — Advocacy groups had their first day in court Tuesday as they seek to throw out Wisconsin rules restricting absentee voting, including by requiring absentee ballots to be filled out in front of a witness.

In the plaintiffs' July lawsuit they ask Dane County Circuit Court Judge Ann Peacock to invalidate three rules, arguing they impose unlawful burdens and barriers to absentee voting and disenfranchise voters by causing otherwise legitimate ballots to be tossed over technicalities. The plaintiffs also want the court to declare that the rules violate the Wisconsin Constitution.

Priorities USA, a well-funded, Washington-based progressive super PAC, spearheaded the action. Lawyers from Elias Law Group, a prominent firm aligned with the Democratic Party, which litigates for voting rights nationwide, represent the plaintiffs, along with Diane Welsh from the Pines Bach firm in Madison.

Named as defendant in the lawsuit is the Wisconsin Elections Commission, a six-member bipartisan board that, as part of Wisconsin’s decentralized elections system, administers election laws and provides guidance to the state’s more than 1,800 local election clerks. The rules disputed in the lawsuit are part of the commission’s election administration manual.

The disputed rules require voters to fill out their absentee ballot in the presence of a qualified witness, who also signs the ballot’s certificate; ban the use of absentee ballot drop boxes; and create an 8 p.m. deadline on Election Day for voters to correct errors on an absentee ballot certificate and return the ballot to the clerk’s office.

Also acting as plaintiffs in the lawsuit are the Wisconsin Alliance for Retired Americans, a nonprofit with more than 15,000 in-state members, and William Franks Jr., a Dane County resident and habitual absentee voter.

State law allows registered electors to vote absentee without providing an excuse, but it stops short of recognizing the process as a constitutional right. Statutes refer to absentee voting as a “privilege” subject to careful regulation — and, in turn, the sometimes-disparate interpretations of lawmakers and judges.

The distinction, that absentee voting is a privilege and not a constitutional right, could end Peacock’s analysis of the plaintiffs’ claims, according to Kevin LeRoy, a lawyer with the Chicago office of Troutman Pepper for the intervening Wisconsin Legislature.

“The right to vote does not encapsulate specifically the right to vote by absentee ballot,” LeRoy said at Tuesday's hearing, adding that Wisconsin has “one of the most permissive absentee voting regimes in the country.”

Arguing for the plaintiffs against the defendants’ motion to dismiss David Fox of the Elias Law Group said even if the rules don't directly burden every voter, they still unjustifiably make voting harder for absentee voters who run the risk of having their ballot discarded if, say, they live alone and can't find a witness, or can't get their cured ballot back to the clerk by the time polls close on Election Day.

The Wisconsin Elections Commission’s lawyer, Assistant Attorney General Faye Hipsman, questioned how burdensome the rules really are.

“As long as in-person voting is available, there isn’t a burden," Hipsman said. “It seems very difficult to find these provisions are unconstitutional."

Though partisan fights over some of the Midwest swing states' voting protocols have been fairly persistent for at least a decade, the three rules at issue in the lawsuit were not seen as a widespread problem until after Donald Trump’s loss in the 2020 election, when Republicans began trying to restrict absentee voting. That contest saw record levels of the practice amid the Covid-19 pandemic.

For Republicans who have controlled both chambers of the Wisconsin Legislature since 2011, getting legislative changes through a state government divided since 2018 — that is, getting them past Democratic Governor Tony Evers, who has repeatedly said he won’t sign any law making it harder to vote — has largely been a nonstarter. That has left these battles to the courts, yielding mixed results and shifting rules that can change close to election days.

In July 2022 the Wisconsin Supreme Court — then with a conservative majority, now with a liberal one — prohibited drop boxes, and three months later a Waukesha circuit court judge barred election clerks from curing absentee ballot certificates. In a separate lawsuit working its way through a Madison federal court, voters seek to nix the witness requirement entirely.

Peacock said at the conclusion of Tuesday’s hearing that she hoped to issue a decision on the defendants’ motion to dismiss within 30 days.

Follow @cnsjkelly

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