Sweeping lawsuit seeks to have absentee ballot requests sent to all Wisconsin voters

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Voters lined up at Milwaukee Marshall High School Tuesday morning talk about the election and the coronavirus pandemic. Milwaukee Journal Sentinel

MADISON – A disability rights group and others sued Wisconsin election officials Monday to try to ensure the state has enough poll workers and guarantee voters who want absentee ballots receive them, adding to a cascade of litigation over how elections should be run as the coronavirus pandemic persists.

The lawsuit, filed in federal court in Madison, seeks to ensure people have ample opportunities to vote in person or by mail for the August primary and November general election. It aims to force election officials to hire more poll workers, send absentee ballot request forms to all registered voters, set up secure drop boxes for absentee ballots in every community and notify voters if their ballots won’t be counted so they have time to fix any problems.

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Bringing the lawsuit are Disability Rights Wisconsin, Black Leaders Organizing for Communities and three women who say they were prevented from voting or faced numerous obstacles in the April 7 election for state Supreme Court. That election caught worldwide attention because of a lack of poll workers, shuttered polling places and long lines in Milwaukee and Green Bay.

The lawsuit contends the way the state plans to run this fall’s elections will violate the U.S. Constitution, the Voting Rights Act and the Americans with Disabilities Act.

“Voters faced starkly different opportunities to safely cast a ballot (in the April 7 election) depending on where they live, their age, their disability status, and their race,” lawyers for the plaintiffs wrote in their lawsuit.

Reid Magney, a spokesman for the Wisconsin Elections Commission, declined to comment on the lawsuit. Republican lawmakers did not immediately say if they would try to intervene in the case, as they have in similar matters.

Already, three lawsuits over how Wisconsin runs its elections are ongoing. Those have been consolidated before U.S. District Judge William Conley and the latest one could be incorporated into that set of cases as well.

One aspect of the new case that differentiates it from the others is that it was brought by voters who claim they were directly harmed by how the April 7 election was conducted.

Jill Swenson of Appleton has early stage chronic obstructive pulmonary disease, or COPD. She received an absentee ballot but couldn’t find a witness to sign it for her because she lives alone and did not want to leave her home or have visitors because of health concerns.

After Conley ruled in the other cases that voters like her could cast absentee ballots without a witness, Swenson mailed in her ballot. Later that day, an appeals court overturned Conley’s ruling and Swenson’s ballot was not counted, according to the new lawsuit.

Maria Nelson of Appleton requested an absentee ballot on March 31 but did not receive it by election day. Nelson, who is being treated for breast cancer, did not feel safe going to the polls in person and was unable to cast a ballot. 

Melody McCurtis of Milwaukee did not want to vote in person because she lives with her immunocompromised mother. McCurtis, a community organizer with Metcalfe Park Community Bridges, requested an absentee ballot on March 22 but it never arrived. She decided to vote in person at Washington High School, but had to wait in line for more than two hours.

“My choice was taken away from me even though I followed all of the steps to ensure that I wouldn’t have to go and put my health and my family’s health at risk,” McCurtis said in an interview. “I did everything in my power to avoid having to go and wait in those lines and wait that long and be contacted with so many people risking my health.”

McCurtis said a National Guard member working the polls told her, “You know this will be a two-hour wait, right?” She viewed the comment as a way to discourage voters and said she saw one woman leave the line after the Guard member spoke to her.

The lawsuit is being brought with the assistance of Protect Democracy, a Washington D.C.-based group formed by former aides to President Barack Obama that says it is focued on nonparatisan issues. Rachel Goodman, counsel for the group, said the lawsuit is meant to make it easier for all Wisconsinites to vote.

The way the state plans to run the fall election is “a harm to democracy and the voters of Wisconsin broadly and not to one political party or one cause,” Goodman said.

Those bringing the lawsuit are asking he judge to require the Wisconsin Elections Commission to make sure the state has enough poll workers and accessible voting machines; mail absentee ballot request forms to all registered voters; ensure every qualified voter who requests an absentee ballot gets one; alert voters if their ballot or request for an absentee ballot is denied; upgrade computer systems to accommodate an expected spike in absentee ballots; require all communities to have drop boxes for absentee ballots; expand in-person voting opportunities, such as with drive-up voting sites; and conduct a public information campaign on absentee and early voting.

In addition, those bringing the lawsuit are asking to allow immunocompromised voters to cast absentee ballots without having to provide a copy of a photo ID or get a witness.

They also want to suspend a law that requires poll workers to come from the county where they work. That’s meant to make it easier to find poll workers for all communities facing shortages.

The lawsuit also asks to allow absentee ballots that arrive up to a week after election day to be counted if they are postmarked by election day or lack a postmark.

State law requires absentee ballots to be received by election day, but in the lawsuits over the April 7 election the U.S. Supreme Court allowed ballots to be counted that arrived after election day as long as they were postmarked by then. Clerks noted after the ruling that they received thousands of ballots that appeared to have been mailed by election day that did not have postmarks.

The plaintiffs also want communities to start counting absentee ballots before election day. That would give voters a chance to fix any problems if their ballots are not counted and would get Wisconsin’s vote tally certified faster.

In addition to the lawsuits Conley is overseeing, there are two election challenges in state court.

In one case, the Wisconsin Supreme Court is considering whether thousands of people should be taken off the voter rolls because they are believed to have moved.

In the other, the state’s high court has issued an initial ruling telling a county clerk to narrow his advice to voters about when they could avoid the voter ID law to get absentee ballots. The court has yet to issue its final decision in that case. 

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.

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