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The Wisconsin Elections Commission, filing its first ever friend-of-the-court brief, challenged Madison’s controversial legal argument that it should not be financially liable for 193 uncounted ballots in the 2024 presidential election because of a state law that calls absentee voting a privilege, not a right.
The argument presented by city officials misunderstands what “privilege” means in the context of absentee voting and “enjoys no support in the constitution or case law,” the commission wrote in its filing Tuesday, echoing a similar rebuke by Gov. Tony Evers last month.
“Once an elector has complied with the statutory process, whether absentee or in-person, she has a constitutional right to have her vote counted,” the commission said.
That both the commission and the governor felt it was necessary to intervene in the case should underscore “both the wrongness and the dangerousness of such a claim,” commission Chair Ann Jacobs, a Democrat, told Votebeat.
The dispute over the city’s legal defense stems from a lawsuit filed in September by the liberal election law firm Law Forward in Dane County Circuit Court against the city of Madison and the clerk’s office, along with former clerk Maribeth Witzel-Behl and Deputy Clerk Jim Verbick in their personal capacities. It seeks monetary damages on behalf of the voters whose absentee ballots were never counted in the 2024 presidential election, alleging that their constitutional rights were violated.
Attorneys for Witzel-Behl — and later the city — argued that by choosing to vote absentee, the disenfranchised voters “exercised a privilege,” citing a 1985 state law that describes absentee voting as a privilege exercised outside the safeguards of the polling place.
Law Forward called the argument a “shocking proposition,” and Evers filed his own friend-of-the-court brief last month, warning that the city’s position could lead to “absurd results.”
Some legal experts said the argument could run afoul of the federal Constitution.
Matthew W. O’Neill, an attorney representing Witzel-Behl, declined to comment.
No statute can override the constitutional right to vote, the commission stated, adding that the Wisconsin Supreme Court decided in 2024 that state law the defendants invoked does not allow for a “skeptical view” of absentee voting.
The argument has also drawn negative reactions from a range of political voices.
On Wednesday, six Wisconsin voting groups — Wisconsin Democracy Campaign, League of Women Voters of Wisconsin, Common Cause Wisconsin, ACLU of Wisconsin, All in Wisconsin Fund, and All Voting is Local — released a scathing statement saying they were “deeply alarmed” by the city’s argument.
“We call on the City of Madison to immediately abandon this dangerous legal argument, take responsibility for disenfranchising voters, and work toward a remedy that respects voters’ constitutional rights,” the statement said.
Meanwhile, Rick Esenberg, the founder of the conservative group Wisconsin Institute for Law & Liberty — which cited the same 1985 law in its 2021 effort to ban ballot drop boxes — said on social media that Madison’s legal argument was likely going too far.
“Madison is correct in noting that absentee voting is a privilege and not a right in the sense that the legislature has no obligation to permit it at all,” Esenberg said. “BUT if it does and people choose to cast their ballot in the way specified by law, it doesn’t seem crazy to say that Madison has a constitutional obligation to count their legally cast vote.”
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Alexander at ashur@votebeat.org.
