A Dane County judge heard arguments in early June in a case that could expand absentee voting options for thousands of Wisconsin voters with print disabilities.
At the heart of the dispute is whether voters who cannot independently read or mark a paper ballot must reveal their choices to another person to vote absentee.
Disability Rights Wisconsin, the League of Women Voters of Wisconsin, and four Wisconsin voters brought the case against the Wisconsin Elections Commission.
The case, assigned to Dane County Circuit Judge Everett D. Mitchell, could reshape how Wisconsin administers absentee voting for voters with print disabilities.
At the hearing, the plaintiffs argued that Wisconsin’s current absentee voting system denies them the same independence enjoyed by other absentee voters. Most absentee voters may cast a ballot from home privately and independently. But voters with print disabilities often must rely on another person to read, mark, or return a paper ballot.
“We’re here today because plaintiffs and the print-disabled voters of Wisconsin cannot vote on the same terms as all other Wisconsinites,” Scott Thompson of Law Forward told the court. “That is discrimination.”
Thompson discussed plaintiffs Stacy Ellingen, who has cerebral palsy and cannot mark a ballot on her own; Tyler Engel, whose spinal muscular atrophy prevents him from independently completing a paper ballot because of weakness in his hands; and Michael Christopher and Donald Natzke, both legally blind, who rely on others to assist them with absentee voting.
“The point really is not whether they can or cannot vote at all,” Thompson said. “It’s about whether they’re having the same opportunities and benefits of the service provided.” Other Wisconsin voters take for granted that they can cast a ballot without disclosing their choices to another person.
He described the ability to vote from home without disclosing ballot choices to another person as being “at the heart of American democracy.”
He also pointed to Wisconsin’s constitutional guarantee of a secret ballot.
Thompson argued that the ADA requires public entities to provide people with disabilities meaningful access to the benefits of a public program. He said that means voters with print disabilities should access Wisconsin’s at-home absentee voting system on the same terms as voters without disabilities.
WEC rejected that characterization, saying that plaintiffs’ case comes down to preference rather than access. Assistant Attorney General Rachel Bachhuber pointed to multiple avenues for disabled voters to cast ballots. Absentee voting with assistance, in-person absentee voting, and Election Day voting all provide meaningful access to Wisconsin’s voting system, she argued.
While plaintiffs seek a private and independent method of voting absentee from home, the ADA does not entitle voters to their preferred accommodation, Bachhuber argued.
Bachhuber said state law already provides meaningful access to voting and that the accommodation sought by plaintiffs would require Wisconsin to build an entirely new voting system.
Although Wisconsin provides electronic ballot delivery to certain military and overseas voters, electronic ballot delivery differs from electronic ballot return, she said. The latter would require creation of a new service rather than an expansion of an existing one and would raise cybersecurity concerns.
Plaintiffs dismissed those concerns as speculative, arguing that election officials had identified no evidence that electronic absentee voting systems had been used to alter election outcomes. They maintained that accessible electronic voting technologies already exist and could be implemented without fundamentally altering Wisconsin’s election system.
Bachhuber, though, argued that internet ballot return introduces vulnerabilities that do not exist in Wisconsin’s current paper-based absentee voting system and that election officials “should not have to wait for a compromised election to take concerns seriously.”
She said that implementing a secure system would require substantial development, testing, training, and ongoing maintenance and could cost millions of dollars.
Thompson repeatedly cited estimates suggesting that approximately 110,000 Wisconsin voters may have print disabilities and could benefit from the requested accommodation.
Bachhuber questioned the reliability and significance of those estimates and argued that even a limited electronic voting system would introduce cybersecurity risks and administrative burdens extending beyond the voters who would ultimately use it.
The hearing concerned motions for summary judgment filed by both sides in the case.
At the end of the hearing, counsel agreed to remove upcoming trial dates from the calendar while Judge Mitchell considers the pending motions.
Mitchell indicated that he expects to issue a decision in August.
At the heart of the dispute is whether voters who cannot independently read or mark a paper ballot must reveal their choices to another person to vote absentee.
Disability Rights Wisconsin, the League of Women Voters of Wisconsin, and four Wisconsin voters brought the case against the Wisconsin Elections Commission.
The case, assigned to Dane County Circuit Judge Everett D. Mitchell, could reshape how Wisconsin administers absentee voting for voters with print disabilities.
At the hearing, the plaintiffs argued that Wisconsin’s current absentee voting system denies them the same independence enjoyed by other absentee voters. Most absentee voters may cast a ballot from home privately and independently. But voters with print disabilities often must rely on another person to read, mark, or return a paper ballot.
“We’re here today because plaintiffs and the print-disabled voters of Wisconsin cannot vote on the same terms as all other Wisconsinites,” Scott Thompson of Law Forward told the court. “That is discrimination.”
Thompson discussed plaintiffs Stacy Ellingen, who has cerebral palsy and cannot mark a ballot on her own; Tyler Engel, whose spinal muscular atrophy prevents him from independently completing a paper ballot because of weakness in his hands; and Michael Christopher and Donald Natzke, both legally blind, who rely on others to assist them with absentee voting.
“The point really is not whether they can or cannot vote at all,” Thompson said. “It’s about whether they’re having the same opportunities and benefits of the service provided.” Other Wisconsin voters take for granted that they can cast a ballot without disclosing their choices to another person.
He described the ability to vote from home without disclosing ballot choices to another person as being “at the heart of American democracy.”
He also pointed to Wisconsin’s constitutional guarantee of a secret ballot.
Thompson argued that the ADA requires public entities to provide people with disabilities meaningful access to the benefits of a public program. He said that means voters with print disabilities should access Wisconsin’s at-home absentee voting system on the same terms as voters without disabilities.
WEC rejected that characterization, saying that plaintiffs’ case comes down to preference rather than access. Assistant Attorney General Rachel Bachhuber pointed to multiple avenues for disabled voters to cast ballots. Absentee voting with assistance, in-person absentee voting, and Election Day voting all provide meaningful access to Wisconsin’s voting system, she argued.
While plaintiffs seek a private and independent method of voting absentee from home, the ADA does not entitle voters to their preferred accommodation, Bachhuber argued.
Bachhuber said state law already provides meaningful access to voting and that the accommodation sought by plaintiffs would require Wisconsin to build an entirely new voting system.
Although Wisconsin provides electronic ballot delivery to certain military and overseas voters, electronic ballot delivery differs from electronic ballot return, she said. The latter would require creation of a new service rather than an expansion of an existing one and would raise cybersecurity concerns.
Plaintiffs dismissed those concerns as speculative, arguing that election officials had identified no evidence that electronic absentee voting systems had been used to alter election outcomes. They maintained that accessible electronic voting technologies already exist and could be implemented without fundamentally altering Wisconsin’s election system.
Bachhuber, though, argued that internet ballot return introduces vulnerabilities that do not exist in Wisconsin’s current paper-based absentee voting system and that election officials “should not have to wait for a compromised election to take concerns seriously.”
She said that implementing a secure system would require substantial development, testing, training, and ongoing maintenance and could cost millions of dollars.
Thompson repeatedly cited estimates suggesting that approximately 110,000 Wisconsin voters may have print disabilities and could benefit from the requested accommodation.
Bachhuber questioned the reliability and significance of those estimates and argued that even a limited electronic voting system would introduce cybersecurity risks and administrative burdens extending beyond the voters who would ultimately use it.
The hearing concerned motions for summary judgment filed by both sides in the case.
At the end of the hearing, counsel agreed to remove upcoming trial dates from the calendar while Judge Mitchell considers the pending motions.
Mitchell indicated that he expects to issue a decision in August.