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Update, Feb. 9, 2026: Madison spokesperson Dylan Brogan said the city is reviewing the decision and considering its next steps. Brogan stressed that the city “has a long history of promoting and protecting absentee voting and that policy has not changed,” but said monetary damages for unintentional errors would mean money and resources “would be diverted to pay for this human error.”
A Dane County judge on Monday rejected the city of Madison’s claim that absentee voting’s characterization in state law as a “privilege” precludes damages against the city for disenfranchising 193 voters, and ruled that Madison can face potential financial liability for the error.
In rejecting motions by the city and other defendants’to dismiss the case, Dane County Circuit Court Judge David Conway said that a state law describing absentee voting as a privilege does not mean absentee ballots receive less constitutional protection than votes cast in person.
“That right to vote,” Conway wrote, “would be a hollow protection if it did not also include the right to have one’s vote counted.”
Conway also rejected former Madison Clerk Maribeth Witzel-Behl’s legal argument that there is a meaningful legal difference between intentionally not counting votes and mistakenly failing to count them due to human error. He held that state law allows for people to seek damages against election officials who “negligently deprive citizens of the right to vote.”
“When an election official fails to count a valid absentee ballot, whether by negligence, recklessness, or malice, he or she deprives the absentee voter of that constitutional right,” he wrote.
The city and Witzel-Behl’s legal argument, made in response to a lawsuit seeking damages on behalf of 193 Madison voters disenfranchised in the 2024 election, drew sharp rebukes from legal experts, Gov. Tony Evers, and the Wisconsin Elections Commission, which filed its very first friend-of-the-court brief opposing the rationale.
Conway dismissed the Madison clerk’s office from the case after arguments that it could not be sued separately from the city, but allowed the case to proceed against the city, Witzel-Behl, and Deputy Clerk Jim Verbick. The voters are represented by a liberal election law firm, Law Forward.
“At the dawn of another election season, the message is clear: the right to vote protects Wisconsinites whether they vote in-person or absentee,” Law Forward staff attorney Scott Thompson told Votebeat. “We are pleased the Court agreed with our arguments and that this case will proceed.”
Matt O’Neill, the lawyer representing Witzel-Behl, declined to comment, and Madison spokesperson Dylan Brogan didn’t immediately comment.
Madison mayor says ‘nonsensical lawsuit’ could weaken elections
In an interview with Votebeat last week, Madison Mayor Satya Rhodes-Conway said she didn’t like the state law calling absentee voting a privilege, not a right. But she said that critics should direct their concerns at the Legislature, rather than at the city.
Rhodes-Conway said the city’s argument “literally repeat[s] what’s in state law.” Legal experts have disputed that characterization, saying the city advanced a novel interpretation of a long-standing statute. Rhodes-Conway said she wasn’t sure those critiques were relevant.
“It shouldn’t be in the law,” she said. “And the state Legislature should take action to correct that and better protect voting in this state.”
The 1985 state law describes absentee voting as a privilege exercised outside the safeguards of the polling place. Another provision requires absentee voters to comply with laws regulating the practice for their votes to count. The law has been cited in lawsuits seeking to restrict absentee voting, but it had never before been used to shield election officials from liability for failing to count valid ballots.
In his Monday ruling, Conway dismissed the city’s interpretation of the law without questioning the statute itself.
“Just because the absentee voting process is a privilege does not mean that those who legally utilize it do not exercise their constitutional right to vote,” he said.
Rhodes-Conway said that, despite using that legal argument in court, the city has consistently promoted absentee voting and will continue to do so.
Rhodes-Conway criticized the lawsuit as a whole, saying that the solution for the city disenfranchising 193 voters in the 2024 presidential election “is not to charge the city of Madison millions of dollars because our clerk’s office made a mistake.”
“That’s not achieving anything. It’s not making elections better,” she continued. “It’s simply taking money that could be invested in basic services and in election protection and election services, and paying it to the plaintiffs. It’s just nonsensical to me.”
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Alexander at ashur@votebeat.org.
