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The city of Madison, Wisconsin, and its former clerk are arguing in court that they can’t be sued for failing to count 193 absentee ballots in the 2024 presidential election, in part because a Wisconsin law calls absentee voting a privilege, not a constitutional right.
That legal argument raises questions about how much protection absentee voters have against the risk of disenfranchisement — and could reignite a recent debate over whether the law calling absentee voting a privilege is itself unconstitutional.
That law, which appears to be uncommon outside of Wisconsin, has been cited repeatedly in recent years in attempts to impose more requirements and restrictions on absentee voting, and, at times, disqualify absentee ballots on which the voters have made errors. It does not appear to have been invoked to absolve election officials for errors in handling correctly cast ballots.
Nonetheless, the law has become central to the defense presented by Madison and its former clerk, Maribeth Witzel-Behl, in a novel lawsuit seeking monetary damages on behalf of the voters whose ballots went missing.
The suit, filed by the law firm Law Forward, names the city and the clerk’s office as defendants, along with Witzel-Behl and Deputy Clerk Jim Verbick in their personal capacities, and cites a series of errors after the 2024 election that led to the ballots not being counted in alleging that they violated voters’ constitutional rights.
In defending against that claim, attorneys for Witzel-Behl argued in a court filing that by choosing to vote absentee, the 193 disenfranchised voters “exercised a privilege rather than a constitutional right.”
Witzel-Behl’s filing argues that the 193 disenfranchised voters did, in fact, exercise their right to vote, but chose to vote absentee and therefore place the ballots into an administrative system that “can result in errors.”
“The fact that Plaintiffs’ ballots were not counted is unfortunate,” the filing states. “But it is the result of human error, not malice. And that human error was not a violation of the Plaintiffs’ constitutional right to vote.”
Matthew W. O’Neill, an attorney representing Witzel-Behl, declined to comment.
The city’s attorneys have now adopted the same argument, filings show.
Asked about the city’s legal defense, Madison’s current clerk, Lydia McComas didn’t address the argument directly but told Votebeat that the city is committed to counting all eligible votes “regardless of how they are cast.”
Phil Keisling, a former Oregon secretary of state, said he wasn’t aware of other states with similar laws. He said he found the city’s argument wrong and offensive.
“The right to vote, if there is a state constitutional right to vote, should have nothing to do with the form that a voter chooses,” he said.
Law passed to clarify absentee voting requirements
The law that Madison cites in its legal defense was enacted in 1985, long before absentee voting became widespread. The stricter language about the regulation of absentee voting came after judges in a series of Wisconsin court cases called for more liberal interpretation of those regulations.
The law states that while voting is a constitutional right, “voting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place.” A subsequent provision states that absentee ballots that do not follow required procedures “may not be counted.”
The law appears similar to a 1969 U.S. Supreme Court decision that drew a distinction between the right to vote and the right to receive absentee ballots. That decision has since been interpreted — and misinterpreted — in a “number of ways by a number of people wanting to trim back mail voting,” said Justin Levitt, an election law professor at Loyola Marymount University.
After the Wisconsin law was enacted, the state election board clarified the Legislature’s position that failing to comply with procedures for absentee ballot applications and voting would result in ballots not being counted. The board did not suggest the law could be used to excuse municipalities that improperly discard legally cast ballots.
Absentee voting has long been available in Wisconsin but surged in 2020 amid the COVID-19 pandemic, and has been extensively litigated since then.
The law calling absentee voting a privilege was central to a lawsuit that resulted in a 2022 statewide ban on ballot drop boxes; another lawsuit to prohibit voters from being able to spoil ballots and vote a new one; and President Donald Trump’s attempt to overturn the 2020 election outcome in Wisconsin.
A later lawsuit led to the reinstatement of drop boxes in 2024. In that case, plaintiffs argued that the law “unconstitutionally degrades the voting rights of all absentee voters by increasing the risk of disenfranchisement.” The court, then led by liberal justices, declined to overturn the statute but disagreed with an earlier interpretation that absentee voting requires heightened skepticism.
Experts say Madison’s defense misinterprets the law
Rick Hasen, a professor at UCLA Law School and expert on election law, said he didn’t think the law itself was problematic, adding that states have various laws controlling absentee voting. The U.S. Constitution, he noted, doesn’t require any state to offer absentee voting.
But “once the state gives someone the opportunity to vote by mail,” he said, “then they can’t — as a matter of federal constitutional law — deprive that person of their vote because they chose a method that the state didn’t have to offer.”
The city and Witzel-Behl’s use of the law in this instance “seems to be wrong,” said Hasen.
Attorneys for Law Forward in a court filing called Witzel-Behl’s argument a “shocking proposition.”
“There is no right to vote if our votes are not counted,” Law Forward staff attorney Scott Thompson told Votebeat. “And this is the only case I’m aware of where a municipal government has argued otherwise.”
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Alexander at ashur@votebeat.org.
