Wisconsin voters sue to nix absentee ballot witness requirement

MADISON, Wis. (CN) — Four Wisconsin voters sued in federal court Monday to toss a state law requiring a witness to the casting of an absentee ballot, which the voters say illegally restricts their franchise.

In their complaint, Susan Liebert, Anna Haas, Anna Poi and Anastasia Ferin Knight claim sections of state elections law saying a U.S. adult citizen must physically witness the casting of an absentee ballot and certify as much with a signature violates an amendment to the  Voting Rights Act of 1965 prohibiting any mandate that a voter get someone else to vouch that they are qualified to vote, which the lawsuit refers to as “voucher requirements.”

In the lawsuit, signed by Diane Welsh, an attorney with Madison-based firm Pines Bach, the plaintiffs say such requirements find their origin in similar, racially motivated voter suppression tactics against Black voters in southern states after the Civil War, including those requiring a voter to produce a witness to affirm their identity, county of residence and lack of disqualifications from voter registration.

The result was that “this rule empowered registered white voters to prevent otherwise qualified Black neighbors from accessing the franchise by refusing to vouch for their eligibility,” and Congress responded by forbidding conditioning a person’s voting rights on another citizen’s voucher with the Voting Rights Act, the plaintiffs say.

Wisconsin law holds that, in order to cast an absentee ballot, a witness must observe a voter mark their ballot and seal it in the ballot envelope and both parties must sign the ballot envelope, the voter attesting they are entitled to vote and the witness attesting to the voter’s attestation. The plaintiffs call this “an illegal restriction on the franchise” and ask the court to declare the practice illegal under the VRA or Civil Rights Act.

“The mere act of complying with the witness requirement injures plaintiffs. The requirement to locate a witness willing to attest to the voter’s procedural and substantive qualifications to vote is, in itself, a concrete and particularized burden on plaintiffs’ legally protected right to vote,” the plaintiffs say in the complaint.

They also say the burdens of the witness requirement falls disproportionately on minority voters, recently naturalized voters and student voters, as most absentee ballot rejections occur in the Badger State’s largest municipalities where these kinds of voters live in the largest shares.

The rules for curing defective absentee ballot certificates are also “very burdensome,” according to the plaintiffs, and those rules are also “very unsettled” due to a September 2022 circuit court order barring clerks from curing the ballots themselves. Aside from the substantial burden presented by merely complying with the witness requirement, the details of the requirement threaten the plaintiffs with disenfranchisement “based on technical noncompliance with nonmaterial requirements” that vary depending on the municipality.

Defendants in the lawsuit are the bipartisan Wisconsin Elections Commission, its six commissioners and administrator, and the clerks for the cities of Brookfield, Madison and Janesville. The commission — which is responsible for administering state election laws and giving guidance to clerks on how to implement the laws — did not immediately respond to a request for comment on the lawsuit.

The clerks administer and enforce the witness requirement, the four voters say, by providing absentee ballots and ballot certificates and assessing whether a returned absentee ballot is properly completed such that it can be counted, including by determining whether a voter used a witness.

The lawsuit outlines that each of the plaintiffs are routine absentee voters who claim the witness requirement burdens their right to vote in this way. Liebert, for example, is a disabled senior citizen largely confined to her home for whom arranging a witness is made difficult by her health problems, especially in light of the Covid-19 pandemic, and her son living more than an hour away. Poi and Knight are undergraduate and graduate students living in the Twin Cities and Chicago, respectively, whose ability to procure a witness is encumbered by logistical issues.

Also signed onto the plaintiffs’ legal action is the Elias Law Group, a prominent Washington-based Democratic Party-aligned firm focused on voting rights litigation led by Marc Elias, who posted about the lawsuit on Monday on X, formerly known as Twitter.

A press release from the Elias Law Group refers to the witness requirement as a “pernicious practice” and pointed to a Legislative Audit Bureau report that showed nearly 7% of around 15,000 absentee ballots cast had certificates with missing witness information, putting those ballots at risk.

The nonpartisan legislative agency’s report — which made dozens of recommendations to the WEC and lawmakers for crafting, implementing and complying with election laws — was one of three reviews of the 2020 general election state conservatives spearheaded based in part on suspicions of widespread voter fraud, none of which was ever discovered.

Follow @cnsjkelly

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