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The City of Madison on Monday appealed a ruling that allows it to be sued for monetary damages for disenfranchising nearly 200 voters in the 2024 election, arguing the decision would unrealistically require “error-free elections” and expose municipalities across the state to liability for mistakes.
The appeal comes after Dane County Circuit Court Judge David Conway Feb. 9 ruling that Madison could face potential financial liability for disenfranchising 193 voters whose absentee ballots were unintentionally left uncounted. Notably, the city did not specifically contest the judge’s rejection in that ruling of its earlier argument that absentee voting is merely a “privilege” under state law — a claim that would have shielded it from damages.
Instead, the appeal centers on who has the authority to enforce election laws and whether voters can sue for negligence. The city argues that such complaints must go first to the Wisconsin Elections Commission and asks higher courts to revisit a landmark 1866 case that allowed damages against election officials who deprive citizens of the right to vote.
“It is not difficult to imagine how the circuit court’s ruling may be perceived as an opportunity by partisan actors to influence the election,” attorneys for the city, former Clerk Maribeth Witzel-Behl, and Deputy Clerk Jim Verbick wrote in the filing.
A permanent path to sue for damages over accidental election errors without going first through the commission could “chill the willingness of individuals to volunteer to assist with elections, and the willingness of voters to participate in the political process,” they wrote.
Madison asks court to revisit landmark voting case
Much of Madison’s appeal asks the court to revisit a key finding in the landmark 1866 case that secured the extension of the franchise to Black Wisconsinites, Gillespie v. Palmer. In that case, the court held that state law allows plaintiffs to sue election officials for damages if they “negligently deprive citizens of the right to vote.”
The case arose after Ezekiel Gillespie, a Black man, was turned away from the polls in 1865. While voters had ratified a measure extending the franchise to Black residents 16 years earlier, it went largely unenforced, as state officials still disputed whether the change was valid. Gillespie sued, and courts ultimately ruled in his favor, concluding in 1866 that Black Wisconsinites had been wrongfully disenfranchised for 17 years.
Although Gillespie was intentionally barred from voting, the court’s ruling established negligence — not just intentional misconduct — as a basis for disenfranchised voters to seek damages. The Dane County Circuit Court relied on that broader standard in allowing the Madison lawsuit to proceed.
Madison officials in their latest appeal argue the lower court misapplied the precedent. In their view, Gillespie was about protecting the right to cast a ballot — a right that they say isn’t disputed in this case. No election official in Madison denied that the 193 Madison voters had a right to vote, they wrote. Rather, they contend, the voters’ ballots were unintentionally left uncounted after being cast.
If Gillespie is extended under these circumstances, the defendants argue, Wisconsin would be the first state to allow “any voter whose ballot is accidentally uncounted a right to sue for monetary damages,” a premise that they say requires immediate review by higher courts given the impending 2026 midterms.
They also contend the 1866 ruling predates Wisconsin’s modern election system, and relying on “such an archaic interpretation of Constitutional rights in Wisconsin is grossly in error and requires intervention before the case proceeds further.”
Madison’s filing “seeks to erode the protections” guaranteed in Gillespie, said Scott Thompson, staff attorney for Law Forward, which filed the case. “This argument follows the city’s failed attempt to throw out this case by arguing that the right to vote does not protect absentee voters from disenfranchisement. The right to vote has value, and the voters the City of Madison disenfranchised look forward to having their day in court.”
Bryna Godar, a staff attorney at the University of Wisconsin Law School’s State Democracy Research Initiative, clarified that a court wouldn’t need to overturn the historic Black voting rights case entirely to rule that it doesn’t apply in the lawsuit against Madison.
“You could potentially read that case in a more narrow way, as applying only to intentional deprivation of the right to vote, as opposed to negligence and deprivation,” she said, adding that it’s likely that only a higher court could reinterpret Gillespie in such a way.
Law Forward’s response to Madison’s appeal is due on March 9. Then the Madison-based District IV Court of Appeals is expected to determine whether the appeal may move forward.
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Alexander at ashur@votebeat.org.
