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Wisconsin federal judge rules disabled voters can get help casting absentee ballots

A Wisconsin Supreme Court decision this summer cast doubt on disabled voters’ ability to get assistance to vote absentee, but federal law guarantees such protections, the judge said.

MADISON, Wis. (CN) — A Wisconsin federal judge on Wednesday ruled disabled voters who need help from someone else to place their absentee ballot in the mail or return it to the municipal clerk cannot be barred from getting that assistance under state law because it is a federally protected right.

Whether disabled voters can get third-party help with absentee voting has been in question in the Badger State since a Wisconsin Supreme Court decision in July banned ballot drop boxes outside a municipal clerk’s office and essentially held that no one but a voter themselves can physically return their absentee ballot.

The high court stopped short of saying that a voter could not have someone else place their ballot in the mail, but days after its decision Wisconsin Elections Commission Administrator Meagan Wolfe said at a press conference that “right now, the voter is the one required to mail the ballot.”

Subsequent press releases from the WEC—a six-member, bipartisan board of commissioners appointed by state officials who themselves appoint the commission’s administrator for state Senate confirmation—backed off from any perceived policy statement or statutory interpretation in Wolfe’s comment and declined to offer the commission’s opinion on what disabled voters’ rights are regarding voting assistance, instead leaving that responsibility to clerks.

Four Wisconsin voters—all of whom suffer from muscular dystrophy or cerebral palsy or are otherwise paralyzed and cannot move or hold a ballot without assistance—sued the WEC in federal court on July 22, asking a judge to declare they are entitled to assistance in both mailing their absentee ballots and returning them in person.

The voters claimed that, without such a ruling, they would face the possibility of their ballot being tossed or the threat of sanctions for violating the law—that, or the choice to risk their health and safety by attempting to vote in person.

On Wednesday, U.S. District Judge James Peterson gave them the relief they were after, stating the Voting Rights Act ensures disabled voters can ask a person of their choosing for voting assistance, regardless of what state law on absentee voting says.

“Voters shouldn’t have to choose between exercising their federal rights and complying with state law. But that is the position plaintiffs find themselves in, and that is in part because defendants have refused to provide clarification. If defendants cannot or will not give plaintiffs assurances that their right to vote will be protected, this court must do so,” Peterson wrote.

Peterson construed the voters’ motion for a preliminary injunction as a motion for summary judgment, granted the motion and closed the case.

The Barack Obama appointee also issued a separate injunction permanently enjoining the WEC and Wolfe from enforcing state law to block disabled voters from getting assistance to mail or deliver absentee ballots to clerks. He gave them until Sept. 9 to tell clerks in writing that the VRA requires that voters that need it must be allowed to get help voting in those ways by someone of their choice.

The voters also brought claims under the Americans with Disabilities Act, the Rehabilitation Act and the First and 14th Amendments of the U.S. Constitution, but the VRA claims were sound enough for Peterson to dismiss the remaining claims without considering them.

The WEC and a lawyer for the voters did not immediately provide comment on the court’s ruling Wednesday morning.

In his summary judgment decision, Peterson dispensed with the WEC’s arguments against the voters’ motion, including that, though the commission enforces the state’s election laws, they are the wrong defendants to sue because it's Wisconsin’s roughly 1,800 municipal clerks who decide in the moment which ballots get thrown out, not the commission.

Peterson noted that the WEC did not dispute that’s a real risk the plaintiffs face, and he chided the commission for refusing to clarify voters’ rights and clerks’ responsibilities in light of recent changes in Wisconsin’s voting laws.

Despite saying in court that they agree the disabled voters are entitled to the assistance they sought, “the statements and memos from defendants since [the Wisconsin Supreme Court decision on drop boxes] was issued are either inconsistent with their litigation position or simply punt the question to more than 1,800 municipal clerks. This leaves disabled voters vulnerable and municipal clerks confused,” Peterson said.

The voters pointed out in their lawsuit that clerks in Brown and Dane counties have already started telling voters they cannot receive third-party assistance with absentee voting. Now, under Peterson’s ruling, the WEC will have nine days to clearly communicate to clerks that the opposite is true.

Wisconsin’s next election is a closely watched set of midterm contests on Nov. 8.

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