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.”