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Wisconsin judge greenlights electronic ballot delivery for disabled voters

The ruling does not allow disabled voters to return absentee ballots electronically, which is prohibited by state law.

MADISON, Wis. (CN) — Voters in Wisconsin with certain disabilities will be able to receive absentee ballots electronically for the November general election after a state judge on Tuesday ruled in their favor.

Current Wisconsin law allows the electronic delivery of absentee ballots only for voters in the military or who reside overseas. No one is allowed to return a ballot electronically.

Four disabled voters, along Disability Rights Wisconsin and the the local chapter of the League of Women Voters, sued Wisconsin Elections Commission earlier this year with the aim of making the electronic option available to those with disabilities.

The advocacy groups and voters opined in their complaint that the state's prohibition on electronic voting amounted to unconstitutional disenfranchisement and a violation of federal law. During arguments on Monday, they narrowed their temporary injunction request, asking only that Dane County Circuit Court Judge Everett Mitchell declare qualifying disabled voters may receive — not return — absentee ballots via email for the November election.

Mitchell responded on Tuesday with a two-page decision saying that “provisions prohibiting municipal clerks from distributing absentee ballots by email … are unenforceable as applied to absent electors … who self-certify to having a print disability.”

The judge’s decision defines “print disability” as one that “prevents the certifying absent elector from being able to independently read and/or mark a paper absentee ballot, including blindness or a physical disability that impairs manual dexterity.”

The elections commission must make emailed absentee ballots available to this subset of self-certified disabled voters for the November election, according to Mitchell’s decision. The judge took care to note that “this order shall not be construed to permit electronic return of a marked absentee ballot.”

The commission did not immediately respond to a request for comment on Mitchell’s injunction.

Erin Deeley, the plaintiffs' Madison-based attorney, argued in court on Monday that the prohibition on electronic voting violates disabled voters' right to vote independently and privately. On Tuesday, she said Mitchell's injunction affirms that.

"The right to a secret ballot is a core democratic principle. It's a right that all voters have under state and federal law, and this ruling makes clear that voters with disabilities are no exception," Deeley said in an emailed statement (emphasis in original).

In a separate order on Tuesday, Mitchell granted the Wisconsin Legislature’s motion to intervene in the plaintiffs’ lawsuit.

Arguments on Monday took a detour into this issue of intervention: A lawyer for the Wisconsin Department of Justice, which is representing the commission, accused the Republican-controlled Legislature of exceeding its authority by inserting itself in the lawsuit when the department is already defending state law, laying bare longstanding tensions between legislative Republicans and Attorney General Josh Kaul, a Democrat.

Misha Tseytlin, a Chicago-based attorney and former Wisconsin solicitor general who frequently represents the Legislature in court, argued that legislators should have a say in court because a state law is being challenged as unconstitutional — a powerful right to intervention granted to lawmakers by lame-duck laws rushed into enactment in 2018 after the election of Kaul and Democratic Governor Tony Evers but before they took office.

Tseytlin did not respond on Tuesday to an email requesting comment, specifically regarding whether the Legislature, now officially party to the lawsuit, plans to appeal Mitchell’s order.

The disabled voters’ and advocacy groups’ lawsuit ultimately could end up at the Wisconsin Supreme Court. The high court is likely to make other consequential rulings on elections before November as conservatives and liberals scrap for votes in the closely divided battleground state, including in a case in which the court’s year-old liberal majority seems open to reversing a ban on absentee ballot drop boxes.

Four of the last six presidential elections in the Badger State have been decided by less than a percentage point. President Joe Biden beat Donald Trump in Wisconsin by just under 21,000 votes in 2020, four years after Trump won the state by a little more than 22,000.

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Categories / Elections, Politics, Regional

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