MADISON, Wis. (CN) — Voters and advocacy groups told a Wisconsin judge Monday that disabled voters have a constitutional right to vote electronically, the first volley in one of many election-law cases that will likely come down to the wire in the battleground state ahead of this fall’s presidential election.
In the underlying lawsuit filed in April, Disability Rights Wisconsin, the local chapter of the League of Women Voters and four citizens with disabilities ranging from blindness to cerebral palsy argue disabled voters face disenfranchisement under current law by being barred from voting electronically rather than via paper ballot.
The disabled voters and advocacy groups seek a declaration that the prohibition on electronic voting for disabled voters violates the Americans with Disabilities Act, the Rehabilitation Act and the state and federal constitutions.
The bipartisan Wisconsin Elections Commission, as well as the commission’s six members and nonpartisan administrator, are defendants in the lawsuit.
Wisconsin law allows military voters and voters who are overseas permanently to either download their electronic ballot via the commission’s online portal or direct their municipal clerk to email them a ballot. Voters who are overseas temporarily cannot download their ballots but can get them emailed.
Current state law does not allow any absentee ballots to be returned electronically, according to the commission.
Disabled voters who do not meet any of these criteria cannot receive, mark and return ballots electronically — and cannot vote in person — must have another person read and mark their ballot for them.
“Doing so forces voters with disabilities to surrender their independence and privacy, share their vote, and trust that their ballot was marked accurately — a surrender of the constitutional right to a secret ballot not demanded of voters without disabilities,” the plaintiffs say in the complaint.
This lack of an option to cast an absentee ballot independently and privately lies at the heart of the plaintiffs’ constitutional challenge.
“There is no basis for this differing treatment for voters with disabilities,” the plaintiffs' attorney Erin Deeley from the Madison firm Stafford Rosenbaum argued Monday.
Deeley gave the example of plaintiff Stacy Ellingen, an Oshkosh woman who has cerebral palsy. Ellingen needs a caregiver to help her vote absentee. But caregiver shortages mean she often does not know her assistant, forcing her to share her vote with a stranger.
Deeley and Jared Grubow, a New York-based attorney also appearing for the plaintiffs, argued the defendants cannot show a compelling state interest in barring disabled voters from the electronic option, or that giving them the option would cause undue hardship.
The plaintiffs’ injunction motion, narrowed as of Monday morning, asks the court to declare only that qualified disabled voters can electronically receive — not return — absentee ballots for the November general election, Deeley said. She mentioned that Wisconsin Elections Commission Administrator Meagan Wolfe said in a deposition that it would take about three months to give the plaintiffs what they want.
Putting aside the merits of the case, Assistant Attorney General Karla Keckhaver argued on behalf of the commission that this issue of timing defeats the plaintiffs’ lawsuit outright.
Absentee ballots for the November election will begin going out at the end of August, Keckhaver said, so the changes the plaintiffs request for the November election cannot possibly be completed according to the timeframe Wolfe outlined.
Even if the plaintiffs’ requests were timely, Keckhaver said they would fail on the merits in part because “‘secret ballot’ does not mean what the plaintiffs say it means.” Ballot secrecy involves not having to reveal one’s vote publicly, she said, not sharing that vote with one other person like a caregiver.
Keckhaver also argued changing the rules this close to an election would cause too much confusion for clerks and voters, “regardless of how hard or easy it is to make those changes.”
Monday's proceedings included a noteworthy detour to hear a motion to intervene from the Wisconsin Legislature, illuminating longstanding tension between the Republicans who control the Legislature and the office of Attorney General Josh Kaul, a Democrat, over defending state law in court.
Assistant Attorney General Charlotte Gibson argued allowing the Legislature to intervene implicates the separation of powers. Controversial lame-duck laws passed in 2018 that gave the Legislature strong intervention rights have largely been upheld at the Wisconsin Supreme Court, but Gibson noted that those decisions do not preempt what is at issue here.
Misha Tseytlin, a Chicago-based attorney who frequently argues in court on behalf of legislative Republicans, called it “radical” to say that separation of powers doctrine bars the Legislature from intervening in a case like this, where state law is being challenged as unconstitutional.
Tseytlin, formerly Wisconsin’s solicitor general under Republican Governor Scott Walker, said the lame-duck laws were passed because “a lot of attorneys general offices are becoming politicized” and, like Kaul’s, they pick and choose which state laws to defend. Either way, even though the Legislature is on the same side as Kaul’s office in this case, the Legislature should be granted at least permissive intervention.
Gibson accused Republican lawmakers of wanting the powers of a “shadow AG” such that they can “look over our shoulder” while the Department of Justice litigates the case.
Dane County Circuit Court Judge Everett Mitchell hedged and allowed Tseytlin to make merits arguments for the record without deciding on the intervention issue Monday.
Mitchell said at the close of the three-hour hearing that his decision on the plaintiffs’ injunction motion would come within the next couple of days.
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