MADISON, Wis. (CN) — A Wisconsin judge on Thursday shut down a lawsuit from four state voters trying to get rid of a state election law requiring a witness for those casting absentee ballots.
In their Oct. 2023 complaint, voters Susan Liebert, Anna Haas, Anna Poi and Anastasia Ferin claimed that a state law requiring a U.S. adult citizen to physically witness, certify and sign an absentee ballot violates the Voting Rights Act of 1965 and Civil Rights Act of 1964.
The requirement created a disenfranchising burden, those voters said, especially for voters who are disabled, members of a minority group, recently naturalized or students.
U.S. District Judge James Peterson, an Obama appointee, found those claims unavailing. On Thursday, he denied the voters summary judgment and instead granted it to the defendants, which included the members of the bipartisan Wisconsin Elections Commission, three municipal clerks and the intervening Wisconsin Legislature.
In all the years since Wisconsin began using the requirement in some form in the 1960s, no one had used federal law to make the plaintiffs’ novel claims.
“The long silence is telling," the judge wrote in his opinion.
“It may be debatable whether the witness requirement is needed, but it is one reasonable way for the state to try to deter abuse such as fraud and undue influence in a setting where election officials cannot monitor the preparation of a ballot,” Peterson added.
The judge felt the plaintiffs were reading Wisconsin law too expansively and applying federal law too broadly. Among other claims, the plaintiffs said the witness requirement unlawfully puts witnesses and clerks in the position of certifying that a voter is eligible and qualified to vote.
Arguing the witness requirement violates the Voting Rights Act by making a witness certify a voter is eligible to vote “is inconsistent with the text and purpose of the statute," Peterson wrote. Furthermore, "it is inconsistent with how the law has been interpreted since [Wisconsin's ballot witness requirement] was enacted."
"The most obvious problem with plaintiffs’ interpretation is that it simply does not make any sense," the judge wrote.
On the voters’ Civil Rights Act claim, Peterson noted that election officials do not use the witness certification on an absentee ballot envelope to determine if the person who cast the ballot is qualified to vote. The plaintiffs’ interpretation therefore falls outside the statute’s scope, he ruled.
“None of the plaintiffs allege that they have been unable to vote in an election for want of a witness,” Peterson wrote in his decision’s conclusion. “Regardless of the challenges plaintiffs face, they have not shown that either the Voting Rights Act of 1965 or the Civil Rights Act of 1964 prohibits a state from requiring absentee voters to prepare their ballot in front of a witness.”
In swing state Wisconsin, where elections at the state and national level are routinely decided by thin margins, litigants have gone to court in efforts to either restrict or expand absentee voting. That's been particularly true since the 2020 elections, when the practice greatly during the Covid-19 pandemic.
On its own, the witness requirement and its details have been the subject of multiple lawsuits. Most recently, a Dane County Circuit Court judge loosened the law regarding what kind of information needs to be included for a witness’ address, ruling in part that throwing out an absentee ballot because of the witness address violates provisions of the Civil Rights Act. The two cases related to that judge’s decisions are currently in briefing at the Wisconsin Court of Appeals.
A progressive super PAC was also recently in Dane County Circuit Court, hoping a judge would declare that multiple absentee voting rules violated the Wisconsin Constitution. The PAC dropped the suit after most of their claims were dismissed but then successfully got the Wisconsin Supreme Court to take their case on a petition for bypass.
On Monday the high court will hear arguments related to one issue in that lawsuit: Wisconsin’s ban on absentee ballot drop boxes. When the state Supreme Court banned drop boxes in 2022, it had a conservative majority. As of last year, it has a liberal one.
Peterson declined the Republican-controlled Wisconsin Legislature’s request to stay the four voters’ federal lawsuit pending resolution of the related state court cases, saying those courts’ orders and judgments can be enforced regardless of his decision. Lawyers for the plaintiffs, including those with the Madison-based firm Pines Bach and the Democratic Party-aligned Elias Law Group in Washington, could not be immediately reached for comment on Thursday.
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