MADISON, Wis. (CN) — A Wisconsin judge on Wednesday tossed most of the constitutional claims in a progressive group’s lawsuit fighting the state’s rules restricting absentee voting.
Priorities USA, a well-funded progressive super PAC based in Washington, spearheaded the plaintiffs’ lawsuit filed in July 2023, joined by the Wisconsin Alliance for Retired Americans and a voter from Dane County.
The group had its first day in court in October, when it outlined arguments against rules requiring voters to fill out their absentee ballot in front of a witness; banning the use of absentee ballot drop boxes; and creating an 8 p.m. deadline on Election Day for voters to correct ballot errors.
The Wisconsin Elections Commission is the nominal defendant in the lawsuit. The commission and the intervening Wisconsin Legislature supported their motions to dismiss at the October 2023 hearing in Madison, arguing in part that the rules are not burdensome and that, while voting is a constitutional right, voting absentee is not.
Dane County Circuit Court Judge Ann Peacock answered the parties on Wednesday by dismissing all of the plaintiffs’ claims that the rules are facially unconstitutional, which Peacock noted “are the most difficult of constitutional challenges.”
“Regardless of whether the challenged absentee ballot provisions are wise or necessary, the allegations in the complaint, if proven, would not meet the high hurdle for a facial challenge,” Peacock said.
The judge said that hurdle had not been met because “plaintiffs’ own allegations show that the provisions are not unconstitutional in all circumstances,” offering as examples that the drop box prohibition imposes no burden on voters who do not intend to use drop boxes to vote and the cure deadline imposes no burden on voters with nothing to cure. (Emphasis in original.)
“While the challenged absentee voting provisions undoubtedly create some burden to some subset of absentee voters, I find that the facts alleged in the complaint do not support an inference that any of the challenged statutory provisions could plausibly burden all voters or even all absentee voters,” Peacock said.
The only constitutional claim to survive the defendants’ motion was a hybrid challenge to the witness requirement. That rule has been the subject of multiple lawsuits, including two in which a different Dane County Circuit Court judge in part made the definition of a witness’ “address” more lenient. Those decisions dropped earlier this month.
The plaintiffs argue the witness requirement hampers subsets of absentee voters who live alone or don't live with anyone eligible to serve as their witness.
“If those allegations are accurate and borne out by factual development in discovery, the witness requirement may be subject to a strict scrutiny analysis and that may result in a meritorious claim,” Peacock said, making dismissal inappropriate at this time.
A constitutional challenge to a Wisconsin statute saying ballots that violate a wide range of elections laws cannot be counted which is contingent on the hybrid challenge also survived the motion to dismiss.
Peacock said at the end of her decision that, due to the time crunch the case faces — Wisconsin has elections coming up in February and April, the latter of which will feature the presidential primary — the court will set an expedited summary judgment schedule at a scheduling conference. Court records indicate the hearing is slated for Jan. 30.
Attorneys for Priorities USA and the Wisconsin Alliance for Retired Americans, the Wisconsin Legislature and the Wisconsin Elections Commission did not immediately respond to requests for comment on the decision on Wednesday.
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