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.

Wisconsin Supreme Court chambers. (Photo by Baylor Spears/Wisconsin Examiner)

On a 4-3 vote Tuesday the Wisconsin Supreme Court rejected a lawsuit against the Wisconsin Elections Commission for not acting  against the city of Racine after the city used  mobile vans for in-person early voting in an election two years ago.

The ruling, written by Justice Jill Karofsky and concurred in by the three other members of the Court’s liberal majority, declared that the voter who brought the case lacked standing to demand a judicial review of the commission’s decision.

The case arose from a challenge to Racine’s use in the August 2022 primary election of a van that was sent around the city for early voting, also called in-person absentee voting, in the weeks before Election Day.

For the primary election that summer, Racine’s city clerk designated 22 early voting sites: City Hall and 21 other locations around the city. The clerk’s office dispatched a van with election equipment to those 21 sites for which notices were posted. Voters could obtain absentee ballots, vote and return their ballots to the vehicle.

On behalf of a Racine voter, the Wisconsin Institute for Law & Liberty, a right-wing law firm that has supported other challenges to local and state election practices, filed a complaint with the Wisconsin Elections Commission (WEC) charging that using the van for early voting violated state law.

The commission rejected the complaint, and WILL filed a petition in Racine County Circuit Court for judicial review of WEC’s decision. Judge Eugene Gasiorkiewicz ruled in January 2024 in WILL’s favor that the early voting van favored Democratic parts of the city and violated state law.

The judge held that the state law authorizing municipalities to establish alternate early voting locations applies to physical structures, not mobile vehicles. State law neither affirms nor prohibits mobile early voting sites, he wrote, but lacking “an express prohibition . . . does not mean mobile absentee ballot sites comport to procedures specified in the election laws.”

Tuesday’s Supreme Court ruling sidesteps a direct interpretation of that question.

Karofsky wrote that the voter WILL represented lacked standing to take WEC to court over the issue.

State law authorizes an election official or a person who files a complaint “who is aggrieved” by a WEC order to take the matter to circuit court. Karofsky wrote that not everyone on the losing side of a WEC order is “aggrieved,” however, and that “to be aggrieved by a decision, one must have suffered an injury to a legally recognized interest as a result of the decision.”

The plaintiff in the WILL lawsuit, Kenneth Brown, didn’t show he suffered or will suffer an injury, she wrote.

In a dissent, Justice Rebecca Bradley criticized the decision’s stipulation about the meaning of “aggrieved” as too narrow. Chief Justice Annette Ziegler and Justice Brian Hagedorn each concurred in part with Bradley’s dissent. 

When WEC dismisses a voter’s complaint without taking action, Bradley wrote, “the voter’s legal right is adversely affected — the voter is aggrieved — and the voter may challenge WEC’s decision in a court of law.”

Bradley also criticized the majority for treating standing too narrowly. Instead, she wrote, the ruling should have taken up the underlying issue on the legality of mobile in-person absentee voting sites in place of fixed buildings.

In a statement, Lucas Vebber, deputy counsel for WILL, said that while the circuit court “determined the election officials in Racine acted unlawfully in their conduct of an election,” the decision Tuesday “does not address those issues, rather it silences Wisconsinites who seek to challenge such unlawful action.”

Law Forward, the voting-rights focused group that defended Racine’s mobile voting before the Court, issued a statement praising the outcome but expressing surprise and disappointment that the decision didn’t address voter suppression tactics that the organization blamed for the original legal challenge.

“The Court was right to toss Mr. Brown’s lawsuit, which sought to restrict absentee voting in one of Wisconsin’s most diverse communities. But a standing deficiency was perhaps the least problematic aspect of Mr. Brown’s lawsuit, which openly targeted Racine’s efforts to make voting more accessible,” said Scott Thompson, Law Forward’s staff counsel.

“Mr. Brown’s suit attacked the right to vote and equal protection under the Wisconsin Constitution,” Thompson said. “Avoiding any comment on such fundamental civil rights issues does little to strengthen our shared democracy.”

This report has been updated with a comment issued by Law Forward that was received after publication.