Madison poll workers on Election Day counted 23 absentee ballots that arrived at four polling places after 8 p.m. Tuesday, despite a state law requiring that absentee ballots be “delivered to the polling place no later than 8 p.m.” in order to be tallied.
The law provides no clear exception to that deadline and says ballots not delivered on time “may not be counted.” But court rulings have given boards of canvassers broad discretion in these cases, allowing them to count ballots as long as there’s “substantial compliance” with election laws and no evidence of “connivance, fraud, or undue influence.”
A past Wisconsin Supreme Court case held that election statutes don’t need to be fully complied with, so long as election officials preserve the will of the voter.
City election officials instructed poll workers to count and mark the affected ballots — which all arrived by the end of the night on Monday, the day before Election Day — in case the city, county or state decides to exclude them.
The Madison canvassing board on Friday unanimously voted to count the 23 ballots. Assistant City Attorney Amber McReynolds said the error was made by the city clerk’s staff, not voters, and that past precedent supports counting the ballots. The county canvass begins Monday.
It is unclear why the ballots — which had been in the city’s possession for several hours before the deadline — were so delayed in arriving at the polling places.
The late delivery marks another potentially significant error in how the city handles its ballots after it faced extensive public scrutiny and a state investigation for disenfranchising 193 voters whose ballots were misplaced in the November 2024 election.
It’s the first high-turnout election run by City Clerk Lydia McComas, hired to replace the clerk who oversaw the 2024 ballot snafu. McComas said her office had informed the Wisconsin Elections Commission of the situation.
Ballots left the city late and got to polls after deadline
Those ballots were in the hands of a ballot courier, who left a city election facility around 6:30 p.m. to deliver ballots to the polls. The courier arrived at those final four polling locations after 8 p.m., reaching the final one at about 8:30 p.m, delivering a combined 23 ballots to all of them.
“Due to a longer-than-usual delivery time, the very last few ballots arrived at four polling places shortly after polls closed,” McComas said.
When similar incidents happened in the past, the county board of canvassers didn’t count those votes in the final canvass based on legal advice, Dane County Clerk Scott McDonell said. He said he’s waiting for more details before deciding how to proceed with these ballots at Monday’s county canvass meeting.
In those past incidents, the county board decided that not counting the ballots in the final county tally “was an obvious choice based on the way the statute’s written,” McDonell said. “The statute isn’t vague.”
Given the ballots’ timely arrival, McDonell said, “they should have gotten out to the polls and should have been counted on time.”
Other municipalities have counted ballots discovered late
Other election officials have at times decided to count ballots discovered after the 8 p.m. deadline, but the rules for municipalities are different depending on their procedures for counting absentee ballots.
In November 2020, Milwaukee workers discovered nearly 400 uncounted ballots during a recount. A campaign representative for President Donald Trump objected to those ballots being included, but the municipal canvassing board unanimously decided that they should count.
At the February 2022 election, Wauwatosa election officials discovered 58 unopened ballots. After consulting the Wisconsin Elections Commission and the city attorney for advice, the city clerk convened the Wauwatosa Board of Canvassers, which included the missing ballots in the totals.
But the rules that allowed Milwaukee and Wauwatosa to count those ballots may not apply to Madison. In both of those cities, absentee ballots are counted in a central location. In Madison, absentee ballots are counted at the polling locations where the registered voter would have voted in person.
In cities like Madison, election workers must deliver absentee ballots to polling places by 8 p.m. For central count municipalities, by comparison, state law only says election officials there shall count ballots received by the clerk by 8 p.m., without clarifying that they must be in a certain place by that point.
The Wisconsin Elections Commission has said the 193 ballots Madison missed in 2024 could have been counted had the city made the appropriate notifications to state authorities. But those ballots were likely already at polling places on Election Day — unlike the 23 ballots here, which arrived after the deadline.
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Shur at ashur@votebeat.org.
Baskets of ballots sit at a new ballot processing center in Thurston County, Washington, on Oct. 30, 2025. (Photo by Jake Goldstein-Street/Washington State Standard)
President Donald Trump’s executive order restricting mail ballots faced a fresh challenge on Friday, as a coalition of Democratic states filed a lawsuit seeking to block an order that experts say is an extraordinary attempt by the president to assert authority over elections.
More than 20 states — led by California, Massachusetts, Nevada and Washington — and the District of Columbia sued in federal court in Massachusetts. They argue the order violates the Constitution, which gives states the responsibility to run elections and allows Congress, not the president unilaterally, the power to override state regulations.
“Though the President may wish he had unlimited power to restrict voting rights, the Constitution gives states – not the White House – the authority to oversee elections,” Massachusetts Attorney General Andrea Joy Campbell, a Democrat, said in a statement.
The lawsuit is only the latest in a growing number of legal challenges to the order since Trump signed it on Tuesday.
The Democratic National Committee, top Democrats in Congress and other Democratic groups have sued, along with the American Civil Liberties Union, League of Women Voters, the League of United Latin American Citizens and other voting rights groups.
Friday’s state-led challenge marked at least the fifth lawsuit over the order.
“Neither the Constitution nor any act of Congress confers upon the President the authority to mandate sweeping changes to States’ electoral systems or procedures,” the complaint reads.
The Trump administration has said the order is necessary to ensure the security of elections and crack down on noncitizen voting, which studies have found is extremely rare. Trump acknowledged the order would likely face litigation when he signed it but called it “foolproof.”
“The President will do everything in his power to defend the safety and security of American elections and to ensure that only American citizens are voting in them,” White House spokesperson Abigail Jackson said in a statement on Wednesday.
List required
The order requires the Department of Homeland Security, with help from the Social Security Administration, to compile a list of voting-age U.S. citizens living in each state and then provide that information to state officials at least 60 days before each federal election.
The order does not tell states how to use the data, but it instructs the U.S. attorney general to prioritize investigations into state and local officials who issue federal ballots to ineligible voters.
The list of citizens will be drawn from naturalization and Social Security records, according to the order. It will also include data from SAVE, a powerful computer program maintained by Homeland Security that verifies citizenship by checking names against information in federal databases.
The order also directs the postmaster general to require every outbound mail ballot be in an envelope that includes a tracking barcode.
At least 90 days before a federal election, states must notify the U.S. Postal Service whether they intend to allow ballots to be sent through the mail. States would then have to submit to USPS a list of voters planning to vote by mail at least 60 days before the election.
“The expression ‘a solution in search of a problem’ came to mind, but this is sort of a quasi-solution in search of a hallucination,” said Pamela Smith, president and CEO of Verified Voting, an organization that promotes the responsible use of technology in elections.
Under the order, the Justice Department and other federal agencies would be directed to withhold federal funds from states and localities that don’t comply with federal laws. It doesn’t specify what federal funds would potentially be targeted or whether states could lose election-related dollars.
“The president’s illegal executive order creates a shadow voter eligibility list within the federal government and it threatens to coerce states into disenfranchising voters missing from those lists,” Nevada Attorney General Aaron Ford said at a news conference in Las Vegas.
States say they run elections, not feds
The coalition of states argues in the lawsuit that Trump’s order would require states to upend existing election administration procedures and spend significant time and resources “mitigating the harms” of its requirements and educating voters about the new rules.
The states joining the lawsuit include Arizona, California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington and Wisconsin, in addition to the District of Columbia and Pennsylvania Gov. Josh Shapiro, a Democrat.
Some Republican state officials have backed Trump’s efforts. Wyoming Secretary of State Chuck Gray in a statement voiced “complete and total” support for the order.
“I look forward to continuing to work with the Trump Administration, the Department of Homeland Security, the United States Postal Inspection Service, and our county clerks on implementation of this executive order,” Gray said.
But the states say the order would require states to act contrary to their own voter roll procedures, systems and voter registration laws, the complaint argues. Arizona Attorney General Kris Mayes, a Democrat, said the Constitution is clear that states run elections.
“Not the President,” Mayes said. “And Arizona will not allow the federal government to seize control of our elections.”
Months before becoming one of the nearly 200 Madison voters in 2024 whose absentee ballots were never counted, Nathan Haimowitz did what he thought he was supposed to do.
As a journalist living in Spain and out of the habit of voting, the 26-year-old former poll worker said he wanted the 2024 presidential election to “be the thing that would spur me to vote more consistently.” To make sure everything was in order, he emailed Madison officials to confirm they had received his absentee ballot application. They told him they had, so he filled out his ballot, sent it in and assumed his vote would be counted.
“It was definitely a deterrence,” he said. “I didn’t know why my vote hadn’t been counted.”
Early signs suggest the error is already reshaping how many of the disenfranchised voters engage with elections — pushing some away from absentee voting and, in some cases, out of the electorate altogether. Interviews with affected voters also reveal a broader disconnect: Many say they are dissatisfied both with how the city handled the mistake and with the high-profile lawsuit filed in its wake to seek damages for the disenfranchised voters. The city, they say, has not been appropriately responsive, and the lawsuit does not reflect their values.
Until now, the public conversation has largely reflected the perspectives of the eight voters who joined the lawsuit as named plaintiffs. But others Votebeat spoke with described a different perspective — one that questions whether financial compensation is the right remedy at all.
Nathan Haimowitz (Courtesy of Nathan Haimowitz)
Mark Ediger, a recently retired chemistry professor at UW-Madison, for example, said he found the lawsuit “pretty bewildering,” adding that as a Madison taxpayer, it would be people like him footing the bill.
The 193 voters range from dozens of students who are only in Madison for a few years to some of their professors and other longtime city residents. Their responses to the error are just as varied.
Some, like Haimowitz, stopped voting entirely. Others, like Ediger, say the incident was a one-off mistake that hasn’t impacted their voting behavior. Notably, Ediger is the only voter among the disenfranchised group who has voted absentee in both of the two elections following the error, according to election data obtained by Votebeat.
“The incident has not diminished my trust in elections,” Ediger told Votebeat, adding that he’s satisfied the city has appropriately addressed its cause. “I don’t see how this should change my voting behavior moving forward.”
But other voters said their experience will change how they vote in future elections. “I’m definitely going to prioritize in-person voting,” Joanne Fairbotham, one of the disenfranchised voters, told Votebeat.
“There’s growing evidence that when someone tries to vote and they are prevented from doing so for one reason or another, it makes them less likely to vote in the future, and it can change their behavior,” said Kevin Morris, a senior research fellow and voting policy scholar with the Brennan Center’s Democracy Program. “You can lose a lot of trust very easily, and it can be very difficult to build that trust.”
All of the disenfranchised voters cast absentee ballots in the 2024 presidential election. But, among the 22 who cast ballots in the February 2025 primary for state superintendent of public instruction and city council, nearly all did so in person. Two months later, two-thirds of the 132 who voted in the Wisconsin Supreme Court race did so at the polls, a share similar to how the same group voted in previous April elections.
Disenfranchised voters question city follow-up
Shortly after learning that her ballot hadn’t been counted, Fairbotham — a 35-year-old medical coder who lives in Madison — wrote to City Clerk Maribeth Witzel-Behl, saying the error was “beyond devastating as an American who prides herself in voting in every election.”
“This is how people lose faith in their government that their rights will be protected,” she said in the letter, calling on Witzel-Behl to resign.
Fairbotham said she never received a response from Witzel-Behl, who has since resigned — or anyone else employed by the city.
“Not hearing a peep,” she said, is the most frustrating part. Fairbotham’s vote in the 2024 presidential election was the first time she cast an absentee ballot since the peak of the pandemic in 2020. She has only cast in-person votes since and said the incident still makes her angry.
Madison City Attorney Mike Haas disputed the characterization that the city didn’t communicate the seriousness of the error, pointing to a city and state investigation and a public apology from the mayor.
Still, some voters said the city’s outreach fell short after such a significant error. Haimowitz, for example, didn’t hear from the city when most of the voters did — a separate oversight by city officials meant overseas voters did not receive the same notice as those living locally. Until speaking with Votebeat, Haimowitz said, he didn’t know whether the mistake that kept his ballot from being counted was his or the city’s, nor what steps officials had taken to prevent it from happening again.
Election administration experts say direct, proactive communication can be critical in rebuilding trust. After a mistake like the one in Madison, jurisdictions should reach out to affected voters, review what went wrong and clearly explain how it will be prevented in the future, said Jennifer Morrell, CEO of The Elections Group and a former Colorado election administrator.
The city has completed the first two steps, Morrell said, but it did not fully follow through on the third.
After sending an initial notice telling voters they could reach out with questions, the city held no further public hearings, said Haas, a longtime election lawyer and former administrator of the Wisconsin Elections Commission. Few of the disenfranchised voters followed up, he added.
Some disenfranchised voters find lawsuit bewildering
The divide among disenfranchised voters extends to the lawsuit filed in the aftermath of the error.
In March 2025, the liberal group Law Forward filed a claim seeking $34 million from the city and Dane County over the error, later turning it into a lawsuit. In February, a circuit court judge ruled that the city could be held liable for monetary damages.
A small group of affected voters has joined the case, arguing it’s one of the only ways to hold the city accountable for failing to count their ballots.
But others see it differently. “In an era where the reliability of elections is being challenged by some groups in completely spurious ways, it seems to me that this lawsuit just adds to that noise,” Ediger said.
Lawsuits seeking monetary damages for disenfranchisement are now rare, but were more common in the late 1800s and 1900s, when Black voters were intentionally and repeatedly disenfranchised by election workers. Then, the fines forced the government to think twice, said Ediger. But there’s no similar pattern of errors or intentionality here in Madison, he added, which makes him doubt the lawsuit’s purpose.
Haimowitz said he also opposed the lawsuit, despite how much it has shaken his confidence.
“I’m not sure that the city should pay such a heavy price for this,” Haimowitz said, adding that at a time when some Republicans are peddling “Stop the Steal” narratives and casting doubt on election integrity, especially in battleground states like Wisconsin, the Law Forward letter unnerved him.
“That kind of money could be debilitating to a city elections board that is already under immense scrutiny and pressure to get it all right,” he said.
Law Forward staff attorney Scott Thompson pushed back on comparisons between the case and post-2020 lawsuits filed by Republicans, including one that sought to throw out over 200,000 absentee ballots in Wisconsin.
“That cavalier attitude towards votes that we saw in 2020 is simply unacceptable, and not compatible with democracy,” he said. “And so what do we do with that? Well, I can tell you what we will not do: We will not stand idly by if hundreds of people in a community lose the right to vote because their ballot simply wasn’t counted.”
He said that lawsuits often make people uneasy, but that their perspective may change when a fundamental right is taken away. He declined to directly comment on some of the disenfranchised voters’ issues with the case.
For some disenfranchised voters, financial damages are part of accountability. Precious Ayodabo, a named plaintiff, wrote in a Cap Times column that her disenfranchised absentee vote “is worth enough” to warrant compensation.
“It’s worth enough that I waited for hours in line to cast it. It’s worth enough that politicians spend millions of dollars to receive it. It’s worth enough that people have put their lives on the line and died to protect it,” she wrote.
Thompson declined to make Ayodabo and the other plaintiffs available for interviews. Of the 193 voters, eight are plaintiffs in the case, he said.
Others who support the lawsuit say it’s less about personal payment and more about forcing systemic change. Fairbotham said she’s grateful the case is pushing the city to take the error seriously, particularly after the Wisconsin Elections Commission found the city violated state law.
Thompson said the lawsuit isn’t about making sure the government knows “every single jot and tittle” of absentee voting procedure, but to ensure election officials count every vote, which he defined as “the absolute most basic obligation.”
“If we’re setting an unrealistic expectation that any mistake made by an election administrator opens you up to a lawsuit, that feels like an impossible situation to be in,” she said. “Election administrators take this so seriously and do everything they can to ensure mistakes don’t happen,” she added, “but they do.”
For Haimowitz — a voter who has helped others register to vote and served as a poll worker — the question isn’t just whether the city fixes the problem. It’s whether he can move past having his ballot go uncounted.
“It was something that made me think it’s clearly not that easy to vote,” he said.
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Shur at ashur@votebeat.org.
The U.S. Senate voted on Thursday, March 26, 2026, on whether to require photo identification to vote in federal elections. (Getty Images)
WASHINGTON — The U.S. Senate was unable to agree Thursday whether to require photo identification to vote in federal elections, as the chamber debated a larger bill that would make several changes to how Americans register and cast ballots.
The 53-47 procedural vote rejected an amendment from Ohio Republican Sen. Jon Husted to the SAVE America Act, which President Donald Trump and some GOP lawmakers believe is an essential piece of legislation, but Democrats say will make it more difficult for Americans to vote.
The bill already included a section that is very similar to the amendment, but the vote gave Republicans the opportunity to put Democrats on the record about whether they supported voter ID to cast a ballot.
California Democratic Sen. Alex Padilla urged lawmakers to oppose the amendment, saying the vote was an indication of “showmanship and theatrics” from Republicans.
Padilla said the effort would have prevented people from using student IDs or tribal IDs that don’t have an expiration date from participating “in our democracy even though you are eligible.”
The photo ID requirement to cast a ballot, he said, would also add an “additional and unnecessary obstacle” to the tens of millions of Americans who vote by mail.
“In the 2024 election, 48 million voters chose to vote by mail,” he said. “And in case you missed the breaking news a couple days ago, President Trump once again voted by mail in the special election in Florida. So what is it, good enough for the president but not good enough for the rest of us? Secure enough for the president but not secure enough for the American people?”
Republicans defend photo ID
Husted said during floor debate on the proposal that his amendment is “clean, simple, straightforward.”
“States across our country have shown that you can simultaneously make it easy to vote and hard to cheat,” he said. “Georgia, Wisconsin, New Hampshire, all along with my home state of Ohio, all have photo ID requirements, just to name a few.”
Husted said it’s “common sense” for Americans to prove who they are when they vote.
“Americans are required to show a photo ID when they rent a car, when they start a job, when they board a plane. This is something that people do every single day,” he said.
New rules for mail-in ballots
The amendment would have required anyone voting in person to provide election workers with a valid photo identification, which would include a driver’s license, state-issued identification card, U.S. passport, military ID card issued by either the Defense Department or the Department of Veterans Affairs, or a tribal identification card that has an expiration date.
Americans submitting a mail-in ballot would need to send a copy of their photo identification. If for some reason a voter was unable to do that, they could submit the last four digits of their Social Security number along with an affidavit that they couldn’t provide a copy of their ID.
The provision would have requested state or local election officials “to the extent practicable” ensure people have access to a digital scanner and printer to copy their photo IDs for their mail-in ballots.
State election officials would have been required to notify people of the new photo ID requirement to cast a ballot when they registered to vote.
The bill itself, which holds several other provisions, has no chance of advancing in the Senate amid Democratic opposition. Major legislation cannot move forward without the support of at least 60 senators, a procedural step known as the legislative filibuster.
Republicans earlier this week floated the possibility of moving pieces of the package through the complicated budget reconciliation process, though several GOP senators conceded it will be difficult to move a policy proposal through a pathway designed for changes to federal tax, spending and debt limit issues.
Election workers receive drop boxes for hand delivered mail-in ballots n North Las Vegas, Nevada, in 2024. Nevada is one of 14 states that counts mail ballots received after Election Day. (Photo by David Becker/Getty Images)
The U.S. Supreme Court’s conservative justices on Monday appeared skeptical of the validity of mail-in ballots that arrive after Election Day, in a case that could potentially affect hundreds of thousands of voters during the upcoming midterm elections.
The high court heard arguments on whether federal law overrides a Mississippi law that requires mail-in ballots that are postmarked on or before Election Day to be counted as long as they arrive within five business days of the election. Fourteen states have similar laws, which extend a “grace period” to ballots that arrive through the mail after polls close.
Several conservative justices raised concerns with allowing ballots to arrive after Election Day, including whether voters could recall ballots once they’ve shipped them but before they arrive at election offices. Justice Brett Kavanaugh questioned whether late-arriving ballots risk undermining election confidence.
“‘The longer after Election Day any significant changes in vote totals take place, the greater the risk that the losing side will cry the election has been stolen,’” Kavanaugh said, quoting from an analysis by a New York University law professor.
The case comes before the Supreme Court at a moment of broader attacks against mail-in voting. Four Republican-led states eliminated their ballot arrival grace periods last year. And Congress is mulling proposals that would restrict voting by mail amid a sprawling debate in the U.S. Senate over legislation demanded by President Donald Trump that would impose sweeping new voter restrictions nationwide. That legislation, known as the SAVE Act, is unlikely to pass because of the filibuster.
The Republican National Committee is challenging Mississippi’s grace period law. The party contends a longstanding federal law that sets the Tuesday after the first Monday in November as Election Day for federal offices preempts state laws that allow ballots cast by Election Day, but received later, to count.
Paul Clement, an attorney for the Republican National Committee, argued the prospect that the outcome of an election could change because of ballots arriving after Election Day would be unacceptable to losing candidates. After the 2020 election, President Donald Trump demanded election officials not count ballots that came in after Election Day. States kept counting ballots.
“If you have an election and the election is going to turn on late-arriving ballots in a way that means what everybody kind of thought was the result on Election Day ends up being the opposite a week later, 21 days later, the losers are not going to accept that result. Full stop,” Clement told the justices.
Mississippi Secretary of State Michael Watson, a Republican who is defending the state law, argues that federal law allows ballots cast by Election Day to be received later. In legal filings, attorneys for the secretary argue both legal and historical precedent support his position. States may decide that voters have made their final choices when ballots are submitted to state officials rather than when they’re received, according to Watson.
On Monday, the justices appeared divided along ideological lines, with conservative justices skeptical of the grace periods and liberal justices more sympathetic. Conservatives hold a 6-3 majority on the court.
“It seems to me that we have a very long history of states having a variety of different ballot receipt deadlines, to include after Election Day,” said Justice Ketanji Brown Jackson, one of the court’s liberal members.
Mississippi Solicitor General Scott Stewart told the court the dispute is over whether Congress in an 1845 law blocked states from counting ballots cast by Election Day but received later. “No one challenged it until now,” Stewart said.
It seems to me that we have a very long history of states having a variety of different ballot receipt deadlines, to include after Election Day.
– Justice Ketanji Brown Jackson
At least 725,000 ballots were postmarked by Election Day 2024 and arrived within a legally accepted post-election window, The New York Times has reported, citing election officials in 14 of 22 states and territories where late-arriving ballots were accepted that year.
About 30% of voters cast a mail ballot in 2024, according to data gathered by the U.S. Election Assistance Commission.
The 5th U.S. Circuit Court of Appeals ruled in October 2024 that federal law requires ballots to be received by Election Day. Trump likewise issued an executive order last year that attempted to require that mail ballots be received by the end of Election Day and to impose other election changes, but much of the order has been blocked by federal courts.
A voter marks her ballot at Fondren Church in Precinct 16 during primary voting on March 10, 2026, in Jackson, Miss. (Photo by Vickie D. King/Mississippi Today)
Rick Hasen, a professor and director of the Safeguarding Democracy Project at the University of California-Los Angeles School of Law, wrote on his Election Law Blog that it was clear from Monday’s arguments that the Supreme Court will be closely divided, “and the case could come out either way.” A decision is expected later in the spring or early summer.
Caleb Hays, chief policy counsel at the Center for Election Confidence, a conservative-leaning legal advocacy group that opposes ballot grace periods, said his organization was pleased that the justices appeared to pick up on the need for a clear end to the voting period. He also welcomed the justices raising the issue of recalling ballots when they are delivered through the mail or by a third-party service like FedEx.
“That brings into question some of the arguments we saw from (Mississippi) on a ballot being final when it is cast and cast includes when it is deposited in a mailbox,” Hays said in an interview.
As the legal challenge made its way through the courts over the past two years, some Republican-led states moved to eliminate their grace periods. Kansas, North Dakota, Ohio and Utah last year moved to require all or nearly all ballots to be in the hands of election officials on Election Day to count.
The states that continue to extend grace periods for ballots arriving after Election Day are Alaska, California, Illinois, Maryland, Massachusetts, Mississippi, Nevada, New Jersey, New York, Oregon, Texas, Virginia, Washington and West Virginia, along with the District of Columbia.
Some local election officials have urged the Supreme Court to uphold ballot grace periods. A decision that strikes down state laws’ grace periods would increase the administrative burdens on many election officials, said a collection of election officials and local governments in California, Massachusetts and Washington in an amicus brief.
“(Grace periods) enable administrators in large and small jurisdictions to do their essential work in a timely and reasonable manner,” the brief says.
If the Supreme Court requires that ballots must arrive on or before Election Day, Clement suggested election officials would have enough time to prepare ahead of November. He said such a decision wouldn’t violate the Purcell principle, a Supreme Court doctrine holding that major changes to election policy and practice shouldn’t be made just before an election because voters could get confused.
The federal law at issue pertains to general elections, not primary elections, he noted — meaning the court’s decision would apply only to the November election.
This story was originally produced by Stateline, which is part of States Newsroom, a nonprofit news network which includes Wisconsin Examiner, and is supported by grants and a coalition of donors as a 501c(3) public charity.
An absentee ballot drop box with updated signage in Madison following the Wisconsin Supreme Court's decision to allow the use of ballot drop boxes. (Wisconsin Examiner photo)
A Dane County judge on Monday denied a motion from the city of Madison to dismiss a lawsuit against the city over its loss of nearly 200 absentee ballots during the 2024 election.
Since misplacing and failing to count the ballots, Madison has been subjected to penalties from the Wisconsin Elections Commission and has hired a new city clerk. The lawsuit against the city was brought by a group of the voters whose ballots were not counted. The voters are represented by the voting rights focused firm Law Forward.
Madison’s defense against the lawsuit has sparked criticism from voting advocates across the state for diminishing the importance of the right to vote. The city had argued it could not be sued for losing the ballots because absentee voting is a “privilege” and not a constitutional right. A legislative policy statement adopted in 1985 states that “voting is a constitutional right,” but that “voting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place.”
The lawsuit comes as Wisconsin election officials and Democrats have been defending absentee voting rights from Republican attacks for years. The argument by Madison officials drew criticism from a number of Democrats, including Gov. Tony Evers.
Dane County Judge David Conway wrote in his order denying Madison’s motion to dismiss that it wouldn’t make sense if the constitutional right to vote did not extend to absentee voting.
“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 wrote. “Of course they do. 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. And that right to vote would be a hollow protection if it did not also include the right to have one’s vote counted.”
The city of Madison and its former clerk are arguing in court that they can’t be sued for failing to count 193 absentee ballots in the 2024 presidential election, in part because a Wisconsin law calls absentee voting a privilege, not a constitutional right.
That legal argument raises questions about how much protection absentee voters have against the risk of disenfranchisement — and could reignite a recent debate over whether the law calling absentee voting a privilege is itself unconstitutional.
That law, which appears to be uncommon outside of Wisconsin, has been cited repeatedly in recent years in attempts to impose more requirements and restrictions on absentee voting, and, at times, disqualify absentee ballots on which the voters have made errors. It does not appear to have been invoked to absolve election officials for errors in handling correctly cast ballots.
Nonetheless, the law has become central to the defense presented by Madison and its former clerk, Maribeth Witzel-Behl, in a novel lawsuit seeking monetary damages on behalf of the voters whose ballots went missing.
The suit, filed by the law firm Law Forward, names the city and the clerk’s office as defendants, along with Witzel-Behl and Deputy Clerk Jim Verbick in their personal capacities, and cites a series of errors after the 2024 election that led to the ballots not being counted in alleging that they violated voters’ constitutional rights.
In defending against that claim, attorneys for Witzel-Behl argued in a court filing that by choosing to vote absentee, the 193 disenfranchised voters “exercised a privilege rather than a constitutional right.”
Witzel-Behl’s filing argues that the 193 disenfranchised voters did, in fact, exercise their right to vote, but chose to vote absentee and therefore place the ballots into an administrative system that “can result in errors.”
“The fact that Plaintiffs’ ballots were not counted is unfortunate,” the filing states. “But it is the result of human error, not malice. And that human error was not a violation of the Plaintiffs’ constitutional right to vote.”
Matthew W. O’Neill, an attorney representing Witzel-Behl, declined to comment.
The city’s attorneys have now adopted the same argument, filings show.
Asked about the city’s legal defense, current Madison clerk Lydia McComas didn’t address the argument directly but told Votebeat that the city is committed to counting all eligible votes “regardless of how they are cast.”
Phil Keisling, a former Oregon secretary of state, said he wasn’t aware of other states with similar laws. He said he found the city’s argument wrong and offensive.
“The right to vote, if there is a state constitutional right to vote, should have nothing to do with the form that a voter chooses,” he said.
Law passed to clarify absentee voting requirements
The law that Madison cites in its legal defense was enacted in 1985, long before absentee voting became widespread. The stricter language about the regulation of absentee voting came after judges in a series of Wisconsin court cases called for more liberal interpretation of those regulations.
The law states that while voting is a constitutional right, “voting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place.” A subsequent provision states that absentee ballots that do not follow required procedures “may not be counted.”
The law appears similar to a 1969 U.S. Supreme Court decision that drew a distinction between the right to vote and the right to receive absentee ballots. That decision has since been interpreted — and misinterpreted — in a “number of ways by a number of people wanting to trim back mail voting,” said Justin Levitt, an election law professor at Loyola Marymount University.
After the Wisconsin law was enacted, the state election board clarified the Legislature’s position that failing to comply with procedures for absentee ballot applications and voting would result in ballots not being counted. The board did not suggest the law could be used to excuse municipalities that improperly discard legally cast ballots.
Absentee voting has long been available in Wisconsin but surged in 2020 amid the COVID-19 pandemic and has been extensively litigated since then.
The law calling absentee voting a privilege was central to a lawsuit that resulted in a 2022 statewide ban on ballot drop boxes; another lawsuit to prohibit voters from being able to spoil ballots and vote with a new one; and President Donald Trump’s attempt to overturn the 2020 election outcome in Wisconsin.
A later lawsuit led to the reinstatement of drop boxes in 2024. In that case, plaintiffs argued that the law “unconstitutionally degrades the voting rights of all absentee voters by increasing the risk of disenfranchisement.” The court, then led by liberal justices, declined to overturn the statute but disagreed with an earlier interpretation that absentee voting requires heightened skepticism.
Experts say Madison’s defense misinterprets the law
Rick Hasen, a professor at UCLA Law School and expert on election law, said he didn’t think the law itself was problematic, adding that states have various laws controlling absentee voting. The U.S. Constitution, he noted, doesn’t require any state to offer absentee voting.
But “once the state gives someone the opportunity to vote by mail,” he said, “then they can’t — as a matter of federal constitutional law — deprive that person of their vote because they chose a method that the state didn’t have to offer.”
The city and Witzel-Behl’s use of the law in this instance “seems to be wrong,” Hasen said.
Attorneys for Law Forward in a court filing called Witzel-Behl’s argument a “shocking proposition.”
“There is no right to vote if our votes are not counted,” Law Forward staff attorney Scott Thompson told Votebeat. “And this is the only case I’m aware of where a municipal government has argued otherwise.”
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Shur at ashur@votebeat.org.
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