Chief Inspector Megan Williamson processes absentee ballots at the Hawthorne Library on Madison's East Side. (Henry Redman | Wisconsin Examiner)
The Republican-controlled Wisconsin Legislature asked a Dane County judge to stay his temporary injunction granting voters with disabilities the ability to cast absentee ballots electronically so the order can be appealed.
The lawsuit, brought by Disability Rights Wisconsin, the League of Women Voters of Wisconsin and four voters with disabilities, alleges that the current absentee voting system discriminates against voters with disabilities such as blindness because they can’t cast their ballots without assistance under the current rules, violating the right to cast a secret ballot.
In June, Judge Everett Mitchell issued a temporary injunction siding with the voters, ordering the Wisconsin Elections Commission to “facilitate the availability of electronically delivered (i.e., emailed) accessible absentee ballots for the November 2024 general election for absent electors who self-certify to having a print disability and who request from their municipal clerk an electronically delivered absentee ballot in lieu of mailing.” The emailed ballots must be able to be read and marked electronically using assistive technology such as a screen reader.
Despite a request from the groups bringing the lawsuit that ballots be allowed to be returned electronically as well, the completed absentee ballots will still need to be printed and mailed back to voters’ municipal clerks, with Mitchell writing that the order “shall not be construed to permit electronic return of a marked absentee ballot.”
Misha Tseytlin, the attorney for the Republicans, argued that the stay of the previous order should be granted because the injunction disrupts the previous status quo under which elections were held and the appeal has a strong likelihood of success.
“The injunction here disrupts that status quo,” Tseytlin said. “So with respect, I believe the appellate courts are likely to agree that that is a disruption of the status quo, and therefore the temporary injunction was not proper on that basis alone.”
Wisconsin Assistant Attorney General Karla Keckhaver, representing the Wisconsin Elections Commission, said in Court Tuesday that the commission was not taking a stance on the request for a stay and appeal of the decision even though it opposed the initial injunction because with so little time before the election in November, the commissioners had to start preparing for how the complex order would be implemented in just a few months.
“The Commission’s primary goal is a fair and uniform election in November, and given the proximity to the election, the Commission felt it had no choice but to begin the complex process of determining how to comply with the temporary injunction order, without the back and forth and the potential uncertainty of an appeal,” Keckhaver said.
Erin Deeley, attorney for Disability Rights Wisconsin and the voters, argued that Tseytlin isn’t necessarily right when he says the Legislature would be successful on an appeal, saying that the status quo violates the Americans with Disabilities Act and a judge isn’t required to uphold an illegal statute.
“It’s not incumbent on a court to enforce a statute that it determines is unconstitutional or otherwise unlawful,” Deeley said. “And here, if the statutes as enforced, which prohibit clerks from electronically delivering ballots, violate the ADA, the temporary injunction standards empower the court to enjoin them if they’re unlawful. I do not believe the status quo requires the court to enforce them.”
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