The voting rights-focused firm Law Forward filed a lawsuit against the Wisconsin Elections Commission Wednesday over the commission’s decision to throw out the spring election votes of 23 Madison voters whose absentee ballots were properly filled out and filed in time, yet were delivered by the city clerk’s office to poll sites after 8 p.m. on Election Day. 

The six-member commission voted last week to order the Dane County Board of Canvass not to count the votes in its certification of the election results because the ballots were delivered minutes after the polls closed April 7. State law allows absentee ballots to be returned until polls close. Ballots can be returned through the mail, to absentee ballot drop boxes located around Madison, to the city clerk’s office or directly to the voter’s polling location. 

The lawsuit, filed in Dane County Circuit Court, argues WEC’s application of the law is unconstitutional because the voters followed all the rules and their ballots were late through “no fault of their own.” 

Madison’s election administration has generated negative headlines several times in the last few years after the city clerk’s office misplaced and failed to count nearly 200 absentee ballots during the 2024 presidential election. The clerk in charge during that election no longer works for the city and the commission has instituted a number of requirements on city election officials to prevent similar errors from happening again. 

Law Forward President Jeff Mandell said in a statement that in this case, WEC is overreaching. He pointed to a long history of Wisconsin court precedent that states voters can’t be disenfranchised over administrative failures of election officials. 

“These voters did everything Wisconsin law asked of them, and the city and county properly counted their ballots,” Mandell said. “Their votes were cast, received, and counted on Election Day. WEC is now trying to erase them from the record because of a clerical error these voters had absolutely no control over. Failing to count these absentee votes will only erode trust in our elections and jeopardize access to voting in future elections. It’s critical that the court take urgent action to ensure these votes are counted.”

No local or state election results will be changed by the 23 votes. The lawsuit must move quickly because state law requires that the results of the state’s April 7 election must be certified by May 15.