Lawsuit against Madison over uncounted ballots will move forward

Law Forward is suing on behalf of nearly 200 absentee voters whose ballots went uncounted in 2024

A Dane County judge is allowing a lawsuit to move forward against the City of Madison over uncounted ballots.

On Monday, Judge David Conway rejected motions from the city and from former Madison Clerk Maribeth Witzhel-Behl that sought to have the case dismissed. 

The progressive law firm Law Forward launched the lawsuit on behalf of 193 Madison voters whose absentee ballots went uncounted in November 2024.

Those untallied votes would not have changed the outcome of any race or referendum.

But Law Forward argues that Madison violated the constitutional rights of those nearly 200 voters.

Among other arguments, Madison contended the case should be thrown out because state law defines absentee voting as a privilege rather than a right. 

That argument prompted strong criticism from Democratic Gov. Tony Evers, who filed a friend-of-the court brief siding against Madison.

Ealier this month, the bipartisan Wisconsin Elections Commission also filed a friend-of-the-court brief rebuking Madison’s argument about absentee voting.

In that brief, the WEC pushed back against Madison’s attempt to have the case dismissed for a process-related reason. Madison had argued that the people suing should have first filed a complaint with the elections commission.

Several sections of state law refer to absentee voting as a privilege, and Republican lawmakers have used those provisions to defend restrictions on absentee voting.

In his opinion Monday, Conway acknowledged that state law gives legislators the ability to regulate the absentee voting process.

But the circuit court judge said that doesn’t mean absentee voters don’t have a right under the Wisconsin Constitution for their votes to be counted.

“Once a voter casts a valid absentee ballot that complies with the Legislature’s rules for utilizing the absentee process, the voter has exercised the same constitutional right to vote as someone who casts a valid in-person ballot at a polling place,” Conway wrote in an opinion issued Monday. “And that right to vote would be a hollow protection if it did not also include the right to have one’s vote counted.’

“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,” Conway said.

Law Forward is seeking monetary damages on behalf of the disenfranchised voters.

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