Madison city hall during the April 2020 spring election. (Henry Redman

The progressive voting rights-focused firm Law Forward filed a class action lawsuit against the city of Madison and Dane County Thursday over the 193 absentee ballots that city election workers lost and didn’t count during the 2024 election. 

The ballots were found in sealed courier bags after the Nov. 5 election and not counted even though the bags were discovered for the ballots to be added to the final vote tally. Law Forward staff said the lawsuit was filed because voters were denied their constitutional right to vote. 

“The goal of this lawsuit is to reinforce and strengthen the right to vote in Wisconsin law, the right to vote is absolutely fundamental in our democracy, the cornerstone of our entire system of governance,” Jeff Mandell, Law Forward’s general counsel, said at a news conference Thursday. “Law Forward exists to defend and advance democracy in Wisconsin, standing up for the right to vote, whenever and wherever it may be violated, is a key part of Law Forward’s mission. This lawsuit is not an attack on any individual municipality or election official. It is instead a necessary and important defense of the right to vote in Wisconsin.” 

Since discovering the mistake, the city has notified the public about the error and participated in an investigation into how it occurred. 

Dylan Brogan, spokesperson for Mayor Satya Rhodes-Conway, said the city couldn’t comment on the pending litigation, but that city officials have worked to make sure the mistake isn’t repeated.

“The City of Madison takes election integrity extremely seriously,” Brogan said. “Our Clerk’s Office has issued a public apology and reached out to affected voters directly to apologize for the failure to count their absentee ballot. They have also taken a number of steps to ensure this never happens again. Ahead of the February primary, election officials were trained on new safeguards and procedures for handling absentee ballots. Internal review of the incident is still underway, and additional steps may be taken. The City is also looking forward to any additional guidance the Wisconsin Election Commission may offer to further strengthen our elections processes.”

For now, Law Forward is representing four of the voters whose ballots went uncounted, but Mandell said the remaining 189 voters would have the ability to join the lawsuit if a judge allows the class action to move forward. The suit requests that damages totalling $175,000 be paid to each affected voter — which exceeds the $50,000 limit under state law for claims against municipalities. 

If all 193 voters participate and receive the full requested amount of damages, the city would be forced to pay more than $33.7 million for the error. 

“The truth is the right to vote is valuable, and I think that we are in an ecosystem where standing up for the right to vote matters,” Law Forward staff counsel Scott Thompson said. “Across the country, there have been efforts to subvert the right to vote, and we believe that this litigation sends a message to anyone who might seek to do something like that. In Wisconsin, there’s going to be a price to pay.”

At a meeting on Friday, the Wisconsin Elections Commission is set to hear an update on its investigation into the issue and how the ballots were lost. Among the actions it may take, the commission could decide to issue a statement to municipal clerks across the state reminding them of the best practices when handling absentee ballots.

(Photo: U.S. Immigration and Customs Enforcement)

Immigrant rights advocates and attorneys are preparing for how Wisconsin’s law enforcement community might assist federal authorities in President Donald Trump’s proposed mass deportation efforts — warning that the new administration’s policies could lead to profiling and high levels of data sharing. 

Eight counties in Wisconsin currently have agreements with Immigration and Customs Enforcement (ICE) under the agency’s 287(g) program, which state that the counties will hold undocumented immigrants in jail if ICE requests them to do so. Brown, Fond du Lac, Manitowoc, Marquette and Sheboygan counties have a memorandum of agreement with ICE under the Warrant Service Officer program and Waukesha County has an agreement with the agency under its jail enforcement program — which allows local deputies to act as immigration enforcement agents and ask questions about inmates’ citizenship status. 

Tim Muth, a senior staff attorney with the Wisconsin ACLU who has researched how local law enforcement interacts with ICE, says these agreements weren’t used very much under the administration of President Joe Biden but now under Trump, it gives federal authorities a good sense of which departments will be allies in a mass deportation effort. 

“What they do indicate is which are the counties who have already raised their hands and said, ‘we are happy to assist with deporting people from the state,’ and I anticipate that the Trump administration is going to start with that list and say ‘we know who our allies are in this in the state of Wisconsin,’” Muth says. “Let’s see if one: We can get more allies signing these agreements, and, two: For the ones who already have, let’s see what we can do to get them more active in this area.” 

Luca Fagundes, an immigration attorney based in Green Bay, says that under Biden, ICE generally only picked up undocumented immigrants in the Brown County jail if they’d committed serious infractions. Fagundes anticipates that ICE — as it did in the first Trump administration — will use the agreement with the sheriff to send people to deportation proceedings for low-level offenses such as driving without a license or other minor traffic violations.

“If history is precedent, I believe the administration will place detainers on anyone they can, regardless of how minor the offense committed by the individual,” Fagundes says, adding that he doesn’t think local law enforcement should aggressively support ICE efforts in a county that Trump won with just 53% of the vote. 

“Certainly there are concerns that law enforcement will cooperate with more aggressive ICE efforts,” he says. “I have these concerns, and I believe the community also shares these concerns. I personally hope that law enforcement in this area continue to exercise their own level of discretion on who to detain. Given the political leanings or lack thereof of Brown County, I don’t believe a mandate has been established with regards to the incoming administration’s immigration policies.” 

Aside from the eight counties with formal agreements with ICE, dozens of other county sheriffs in Wisconsin are Republicans and likely share Trump’s opinions on immigration. Muth says a big concern is these counties forging informal relationships with ICE that amount to letting the agency know whenever a foreign national is held in a county jail. 

This practice, he says, has historically been common in Walworth County, resulting in a higher per capita number of immigrants removed from the county than anywhere else in the state. 

“Basically every day they would send a list to ICE of every foreign national who had been booked into the jail,” Muth says. “So I think we’re going to see more of that kind of informal information sharing. And then I think the other thing is, even though immigration enforcement is not a state matter, it’s a federal matter, we’ll probably see more local law enforcement, the county level and local municipal level, asking people, what’s their immigration status?”

Muth says the ACLU, community organizations and churches have been working on extensive know-your-rights campaigns in recent months to inform people of what their rights are if they’re stopped by law enforcement and asked these sorts of questions. 

“And our advice is always, you know, you shouldn’t speak to law enforcement without your attorney, and ask for counsel,” he says. “Very often people, especially people from marginalized communities, don’t know that they can refuse to answer questions like, ‘what’s your immigration status?’ And I expect we’re going to see local law enforcement, especially in more conservative counties, asking those questions, even though it is unrelated to enforcing any state of Wisconsin criminal statute.”

But, he adds that many rural sheriffs will be in a bind. They can support Trump and assist ICE in aggressive deportation efforts but that could come with political backlash from an important local voter base — farmers who rely on undocumented labor. 

“I think there are some counties where the local farms are very dependent on undocumented farm workers where the sheriffs recognize that they don’t want to harm the local agricultural community,” he says. 

In the state’s more liberal communities, local officials have promised to do what they can to thwart local ICE efforts. At a news conference last week, Dane County Executive Melissa Agard and District Attorney Ismael Ozanne said the county would continue to offer the area’s immigrant community assistance through programs in the human services department and that the DA would never ask for the immigration status of a victim or witness in a criminal prosecution. 

The Dane County sheriff’s department has also said it would not assist ICE and wants to maintain its relationship with the immigrant community so they report crimes when they happen. But the county has also continued to participate in the State Criminal Alien Assistance Program (SCAAP), which provides grants to reimburse local governments for the cost of detaining noncitizens. 

Participation in the program involves regularly sending federal authorities a list of all noncitizens who were held in the jail and convicted of at least two misdemeanors or one felony. Shortly after current Sheriff Kalvin Barrett took office in 2022, the Dane County Board assessed the county’s participation in the program and decided to continue the county’s involvement. 

Elise Schaffer, a spokesperson for the sheriff’s office, says the board decided to continue because the reimbursement is based on historical data, not who is currently in the jail. She says the county hasn’t even finished sending all of the 2023 data to the Department of Justice office that operates the program and passes the information along to ICE. 

Muth says that in many ways Dane County and Madison have policies that he believes are good for the local immigrant community, but that even Milwaukee County, with its tight budget, hasn’t accepted this money. 

“The Milwaukee County sheriff’s budget is certainly really tight,” he says. “They’re really suffering, but they don’t pursue that money, which I commend them for. I think in general, other than pursuing this SCAAP funding, I think Dane County and the current sheriff and the Madison police department have a good set of policies that we applaud them for. But ICE’s mass deportation plan ultimately will be necessarily data driven, right? And Dane County has been feeding them data for years.”