Democrats sued over President Donald Trump’s executive order clamping down on mail ballots on Wednesday, signaling the start of another fight with the White House over elections.

The order, which would create a national list of voting-age American citizens and directs the U.S. Postal Service to place limits on mail-in ballots, constitutes an extraordinary and illegal attempt by Trump to intervene in the voting process, election experts said.

An array of Democratic groups, including the Democratic National Committee, filed a federal lawsuit against the order in the District of Columbia late Wednesday. U.S. Sen. Chuck Schumer of New York, the minority leader, and House Minority Leader Hakeem Jeffries of New York are also plaintiffs. They are represented by Marc Elias, a prominent progressive voting rights litigator.

The Democrats allege in a 61-page complaint that Trump has tried “again and again” to rewrite election rules for his own advantage. It accuses the president of acting beyond the scope of his authority and unlawfully intruding on the authority of Congress and the states, as well as violating the authority of the U.S. Postal Service.

“The Executive Order’s provisions are convoluted and confusing,” the complaint reads. “What is clear is that it dramatically restricts the ability of Americans to vote by mail, impinging on traditional state authority.”

Several Democratic election officials have also promised to challenge the order. 

“The executive order is unconstitutional and I think it is very likely that it will be struck down,” Colorado Democratic Secretary of State Jena Griswold said in an interview. She said her state would join litigation against the order.

Arizona Secretary of State Adrian Fontes said he would meet the federal government in court, while Nevada Secretary of State Francisco Aguilar said “we look forward to our day in court challenging this illegal action.” Maine Secretary of State Shenna Bellows said her state was “not going to obey in advance” because the states, not Trump, are in charge of elections.

Advocacy groups also promised lawsuits. The Campaign Legal Center said it would challenge the order with its partners, the Democracy Defenders Fund, the League of United Latin American Citizens and other organizations.

White House calls for passage of SAVE America Act

Ahead of the Democrats’ lawsuit, White House spokesperson Abigail Jackson said in a statement that election integrity has always been a top priority for Trump. She also called on Congress to pass the SAVE America Act, which would require voters to provide documents proving their citizenship to register to vote.

“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,” Jackson said.

In Nebraska, Republican Secretary of State Bob Evnen downplayed the possibility of immediate changes to his state’s elections, while praising Trump for prioritizing election integrity. Nebraska will hold a primary on May 12.

“Over the coming months, we will continue to monitor and participate in how the implementation of the executive order might impact the November 3rd general election,” Evnen told the Nebraska Examiner.

Tens of millions of Americans vote by mail in federal elections, underscoring the stakes of any major restrictions on voting by mail. About 30% of voters cast mail ballots in 2024, according to data gathered by the U.S. Election Assistance Commission.

Another elections challenge

Opponents of Trump’s election-related moves have a good track record in court.

Trump’s first order on elections, issued just over a year ago, attempted to require voters to prove their citizenship. While Congress is debating the SAVE America Act, which would implement similar requirements, federal courts found that the president had overstepped his authority when he attempted to impose changes unilaterally.

Nearly 30 states are also fighting U.S. Department of Justice lawsuits seeking to force them to turn over copies of voters containing sensitive personal information on voters. Three federal judges have so far ruled against the Trump administration.

State administration of elections is a fundamental feature of American democracy, spelled out in the U.S. Constitution. States run and regulate elections, but Congress — not the president alone — can override states and set national standards.

At a basic level, critics of Trump’s executive order argue it tramples on state authority and bypasses Congress. 

“Once again, the President is attempting to act beyond his powers and seize control of our elections. Now he is attempting to weaponize the United States Postal Service against the voters. We will not stand for it,” U.S. Rep. Bennie Thompson of Mississippi, the ranking Democrat on the House Homeland Security Committee, said in a statement.

‘This will help a lot’

Trump cast the executive order as a necessary step in support of election integrity when he signed it during an Oval Office event on Tuesday. He acknowledged it would likely face legal challenges but called it “foolproof.”

Trump, who has long called the 2020 election stolen, falsely asserted that elections have been marked by significant fraud, saying the order was aimed at “stopping the massive cheating that’s gone on.” In fact, instances of noncitizen voting are extremely rare.

“I think this will help a lot with elections,” Trump said.

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 U.S. Attorney General Pam Bondi 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 Trump administration has been encouraging states to run their voter rolls through SAVE to identify potential noncitizens, but some election officials say it wrongly flags Americans as noncitizens. Several voting rights and civic groups have sued over Texas’ use of SAVE.

The Justice Department confirmed last week that it will share voter data it obtains with Homeland Security. At the same time, DOJ lawyers have been adamant in court that the Trump administration isn’t creating a national voter registration list.

“And yet here is an executive order that very overtly and expressly directs DHS to create that national voter database,” David Becker, executive director of the nonpartisan Center for Election Innovation & Research, told reporters on Wednesday.

Postal Service involvement questioned

The order directs Postmaster General David Steiner, who was named to the role by USPS’s Board of Governors last year, 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.

“What the president is doing today is he’s going to make sure mail-in ballots are safe, secure and accurate,” U.S. Commerce Secretary Howard Lutnick told reporters on Tuesday.

Trump’s effort to enlist USPS in election administration goes against the agency’s own policies. When the Postal Service updated its rules last year, it noted that it does not establish rules or deadlines for elections, or determine how the mail is utilized for elections.

USPS spokesperson Cathy Purcell said the agency was reviewing the executive order.

The order is a “structural inversion” of how mail voting works, said Pamela Smith, president and CEO of Verified Voting, an organization that promotes the responsible use of technology in elections. USPS delivers mail and isn’t involved in distributing ballots, she said.

“It is not up to the Postal Service to have this gatekeeping role over ballot delivery,” Smith said.

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.

States receive minimal federal election security grant funding each year from the Election Assistance Commission. During the 2025 fiscal year, the EAC distributed $15 million total, which can be used for upgrades to voting systems, cybersecurity, training and other needs.

“Even if it were to come to pass,” Smith said, “I don’t think it would carry much weight as a stick.”

Racine County election conspiracy theorist Harry Wait was found guilty of election fraud Tuesday for requesting absentee ballots on behalf of two elected officials in 2022. 

Wait has been a prominent voice in Wisconsin’s community of election deniers since the 2020 presidential election, including as a leader of the group H.O.T. Government. He was convicted of two counts of misdemeanor election fraud and one count of identity theft by a Walworth County jury. 

Wait was charged by Wisconsin Attorney General Josh Kaul in 2022 after he requested absentee ballots using the names of Racine Mayor Cory Mason, a Democrat, and Wisconsin Assembly Speaker Robin Vos, a Republican. Wait said at the time he requested the ballots as part of an effort to prove the state’s absentee ballot system is vulnerable to fraud. 

After requesting the ballots, Wait publicized his effort, gaining the attention of Racine County Sheriff Christopher Schmaling. Schmaling and other members of the Wisconsin Republican party celebrated Wait’s work as highlighting a vulnerability in the system. However election administrators said Wait had committed a crime by requesting the ballots and the fact he was caught showed the system was not actually vulnerable. 

Voting by mail has been under attack from Republicans in Wisconsin and across the country since President Donald Trump began to make his false claims that the 2020 election was stolen partially because of absentee ballots. Trump lost the 2020 election in Wisconsin by about 21,000 votes and numerous audits, reviews and investigations have affirmed that result. 

Wait faces up to seven years imprisonment, but his sentencing has not yet been scheduled. After his conviction, he told reporters he “would do it again.”

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Gov. Tony Evers said he would resist any efforts by the FBI and President Donald Trump to seize voting documents in Wisconsin as part of their review of the 2020 presidential election. 

Already this year, FBI officials have seized voting data in Georgia and Arizona, two swing states that Trump lost in 2020. Like Wisconsin, both states have been the regular focus of 2020 election conspiracy theories spread by Trump. 

If the FBI seized absentee ballots cast in Milwaukee County, those documents could reveal how individuals voted because of a state law that includes information that could tie each individual ballot to the voter’s signature in the official poll book. 

Federal officials have already worked to collect voter registration data in states across the country. The effort to collect that data from Wisconsin has been slowed by the state elections commission and the Wisconsin Department of Justice. 

Federal law enforcement has so far not signaled it’s going to expand its 2020 election investigation to include Wisconsin, but local officials have warned Milwaukee could be a target. Evers told the Milwaukee Journal-Sentinel earlier this week that he’d fight any such effort. 

“The idea that the state should somehow turn over sensitive voter information and documents that could enable the federal government to know how Wisconsinites voted and who they voted for is wrong, and we’ll continue fighting to protect Wisconsinites’ right to vote by secret ballot,” Evers said. “We want to keep our elections safe and secure, and caving to the Trump administration’s demand will do the exact opposite. That’s something we’re going to fight all the way.”

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President Trump's statements that Republicans should take over and run elections in many states, the domestic deployment of armed agents who are shooting people in nearby cities, along with Wisconsin's long struggle over fair voting rules, makes for a tense election season. But voters still have the power to defend their rights. | Photo of an anti-gerrymandering sign in the Wisconsin State Capitol by the Wisconsin Examiner

Wisconsin was almost certainly on President Donald Trump’s mind when he said this week, “We should take over the voting, the voting in at least many — 15 places. The Republicans ought to nationalize the voting.”

Our swing state was Ground Zero for the fake electors plot to overturn the results of the 2020 election after Trump narrowly lost here. Wisconsin U.S. Sen. Ron Johnson’s office was involved in the effort to pass off fraudulent Electoral College ballots cast by state Republicans for Trump. Our state Legislature hosted countless hearings spotlighting election deniers and wasted $2.5 million in taxpayer dollars on a fruitless “investigation” of the 2020 presidential results, led by disgraced former Supreme Court Justice Michael Gableman, who threatened to arrest the mayors of Madison and Green Bay.

So how worried should we be about Trump’s election takeover threats?

“I wouldn’t be overly concerned that the president could get anything done that’s directly contrary to the Constitution,” says John Vaudreuil, a former U.S. Attorney for the Western District of Wisconsin and a member of the nonpartisan group Keep Our Republic, which works to promote trust in elections.

Not only does Article I of the U.S. Constitution expressly delegate elections administration to the states, Wisconsin has one of the most decentralized elections systems in the country, with about 1,800 local clerks running elections in counties, municipalities and townships throughout the state. “And they are Republicans, they are Democrats, they are independent,” Vaudreuil says. “Most fundamentally, they’re our neighbors, they’re our friends.” 

Trump’s threats of a federal takeover would be both legally and practically hard to pull off in Wisconsin.

But there is still reason to worry. Sowing distrust in elections takes a toll on clerks and poll workers, who have become less willing to put up with the threats and hostility generated by Trump’s attacks. Vaudreuil urges people to support their local elections officials and poll workers and spread the word that the work they do is important and that elections are secure.

Then there’s the danger that Trump could use his own false claims about election fraud to send federal immigration agents to the polls on the pretext that it’s necessary to address the nonexistent problem of noncitizen voting.

Doug Poland, director of litigation at the voting rights focused firm Law Forward, has been involved in election-related litigation in Wisconsin for years, including a lawsuit to block the Trump administration from forcing the state to turn over sensitive voter information. 

Poland sees Trump’s threats to “nationalize” elections as part of a pivot from Republican efforts to make in-person voting harder — on the dubious theory that there’s a huge problem with voter impersonation at the polls — to a new focus on stopping absentee voting after many people began using mail-in ballots during the pandemic. But really, it’s all about trying to make sure fewer people vote.

Under former Republican Wisconsin Gov. Scott Walker, Wisconsin passed a strict voter ID law, which one Republican former staffer testified made Republican legislators “giddy” as they discussed how it would make it more difficult for students and people of color to vote. 

Like Vaudreuil, Poland sees the current threat from the Trump administration not as an actual takeover of election administration by the federal government, but as an escalation of intimidation tactics.

“Noncitizens generally don’t vote. So it’s a lie,” Poland says. “But it’s, of course, the lie that they’re going to use as a premise to send, whether it’s ICE or whomever it may be, to polling places, probably in locations with Black and brown populations, and that is purely for the purpose of intimidation. And at the same time, they’re pushing back very hard on absentee voting by mail.”

If the Trump administration is preparing to send armed federal agents to the polls to intimidate voters, absentee voting will be more important than ever in the upcoming elections.

Yet, U.S. Sen. Ron Johnson recently told constituents that while he doesn’t think the federal government should take over elections administration, “I think we need to tighten up the requirements for absentee voting. I’m opposed to mail in register or mail in balloting.”

And as Erik Gunn reports, Wisconsin U.S. Rep. Bryan Steil’s Make Elections Great Again Act would restrict absentee voting, along with adding new layers of citizen verification steps while threatening to defund elections administrators who fail to comply with the bill’s onerous requirements.

“They’re going to do everything they can to try to make it harder to vote absentee by mail, to make it harder to vote absentee in person,” Poland says, adding, “They’re going to try to do it so they can put ICE agents around polling places and just try to intimidate people, to keep them away.”

So what can be done?

Voter intimidation is a crime, and specific instances can be addressed through lawsuits, Poland says. Still, he acknowledges (and Law Forward has argued in court) that once someone is deprived of the right to cast a ballot, there’s no remedy that can adequately compensate for that loss. That’s why it was so appalling when the city of Madison asserted that absentee voting is a “privilege” in response to a lawsuit brought by Poland’s organization over 200 lost ballots in the 2024 election.

Of course, in addition to worries about possible violations of individuals’ right to vote, there’s the fear that Trump could manage to subvert elections through heavy-handed tactics like the recent FBI raid to seize 2020 ballots from Fulton County. Both Vaudreuil and Poland think judges would step in to prevent such a seizure in the middle of an election, before the ballots were counted.

Meanwhile, in Wisconsin, absentee voting remains legal and many municipalities are using secure ballot drop boxes. We need to keep on making use of our right (not our privilege) to vote, using all the tools we have in place.

As for the intimidating effect of armed ICE agents at polling places, local officials and perhaps local law enforcement could have a role in protecting the polls and reassuring voters it’s safe to cast their ballots. Neighbors who have been organizing to warn people of ICE raids, bring food to immigrants who are afraid to leave their homes, and form a protective shield around schools could become self-appointed polling place protectors.

If we are going to defend the core tenets of our democracy against an administration that has demonstrated over and over again its contempt for the Constitution and the rule of law, it’s going to take massive public resistance and a flat refusal to give up our rights.

“What is it that will make them stand down from what they’re doing to break the law?” asks Poland. “I think the people of Minnesota have answered that for us better than anybody else can, which is that you have to stand up, you have to exercise your rights, First Amendment rights, the right to vote.”

Exercising our rights is the only way to make sure they are not taken away. Courage and collective action are the best protection we’ve got.

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Wisconsin Gov. Tony Evers criticized an argument by Madison and its former city clerk that they shouldn’t be held liable for losing 193 absentee ballots because absentee voting is a “privilege,” writing in a court filing that accepting such an argument would “lead to absurd results.”

The argument is key to the city’s defense against a lawsuit that seeks monetary damages on behalf of the 193 Madison residents whose votes in the November 2024 election weren’t counted. It was first presented by the former clerk, Maribeth Witzel-Behl, citing a provision of state law, and then adopted by the city.

If courts accept the argument that absentee voting is a privilege and not a right, the Democratic governor said in a friend-of-the-court brief, election officials would be free to treat absentee ballots in ways that diminish people’s right to vote. For example, he wrote, they would be under no obligation to send voters replacement ballots if ballots they left in a drop box were damaged, and clerks could effectively disqualify ballots from politically disfavored precincts by intentionally not signing their initials on the ballot envelopes.  

Experts say that for a governor to intervene in such a local matter is rare and underscores how seriously Evers views the potential implications. In an earlier communication with the court, the governor said the argument from the city and Witzel-Behl “ignores longstanding state constitutional protections.”

Barry Burden, a political science professor at UW-Madison, said Democrats are likely conflicted by the case, seeking to prevent election administration failures like those in Madison while also resisting arguments that could weaken protections for absentee voting in Wisconsin.

“They’re in a weird place to be criticizing absentee balloting in Madison, one of the most Democratic cities in the state,” he said, adding that he thinks the governor “is speaking for the Democratic Party in getting involved in this case” to convey that it is an “isolated incident” and that the party does not share the position that “absentee voting should be treated any differently in terms of the protections that are given to voters than people who vote in person.’”

In his filing Friday, the governor noted that about 45% of ballots in the 2024 presidential election were absentee.

“The constitutional right to vote,” Evers wrote, “would mean little if close to half of all voters in Wisconsin were deprived of it because they chose to legally cast an absentee ballot.”

Witzel-Behl, former clerk, stands by the ‘privilege’ defense

The lawsuit against Madison officials is a novel type of case in seeking monetary damages over the loss of voting rights. Liberal law firm Law Forward filed the case against the city and the clerk’s office, along with Witzel-Behl and Deputy Clerk Jim Verbick in their personal capacities, alleging that through a series of errors that  led to 193 absentee ballots getting lost in the November 2024 election, election workers disenfranchised the voters and violated their constitutional rights.

As part of their defense, attorneys for Witzel-Behl argued in a court filing that by choosing to vote absentee, the 193 voters “exercised a privilege rather than a constitutional right,” and that she therefore couldn’t be held financially liable for the lost ballots. Madison later joined that argument.

Law Forward rejected the argument in a response filed in late December, calling it a “shocking proposition.”

Attorneys for the city and the former clerk submitted their own briefs last week.

Attorneys for Witzel-Behl reiterated their argument that absentee voting is a privilege and not a constitutional right, adding that “an error in the handling or delivery of an absentee ballot is not the constitutional equivalent of barring the door to the voting booth.”

While absentee ballots should normally be counted, they argued, not counting them because of an unintentional error isn’t a constitutional violation for which they should be financially liable.

Rather than following court precedent, they said, the plaintiffs seek to create a “new, foundationless doctrine allowing monetary damages for the mishandling of an absentee ballot.”

Other defendants zero in on novel monetary claim

In a separate brief, Verbick, the deputy clerk, said he “does not, of course, dispute that Plaintiffs have a right to vote” but rather alleges that there’s no path for the plaintiffs to seek monetary damages for the city’s error.

The city, in another brief, similarly said that no court case cited by Law Forward allows plaintiffs to seek damages for ballots that are unintentionally mishandled. 

Allowing such claims, outside attorneys for the city warned, would push courts into “dangerous, untested waters.” 

“As other courts have cautioned,” they said, “exposing local election officials to financial liability for unintentional disenfranchisement would thrust courts into the minutia of any given election, a role for which courts are unsuited.”

In a separate statement, the city said it believes that all forms of voting, including absentee voting, should be “encouraged, promoted and protected.” But it argued against attaching a dollar amount to a mishandled vote.

Doing so, it said, “would end up regularly costing cities, towns and municipalities hundreds, thousands — or in this case millions — of dollars that could otherwise be spent improving voter access and elections processes.”  

Absentee voting has changed substantially since law’s enactment

The law cited by Witzel-Behl’s attorneys labeling absentee voting a privilege — one that may require more regulation than in-person voting — dates back to 1985. It was enacted after judges in a series of Wisconsin court cases called for more liberal interpretation of absentee voting rules. While it has previously been used to invalidate absentee ballots on which voters did not follow procedure, it has so far not been used in support of a locality failing to properly count votes.

“Absentee voting has changed so radically in the 40 years since the law was written,” Burden said. “It was used by a very small number of voters, it was more difficult to use, there were more witness requirements at the time, and clerks were not really as amenable to absentee voting as they are today.”

Today, absentee voting is an expected and routine part of elections.

“So to treat it as kind of a special class with different rules or rights, maybe in the 1980s that  made more sense,” Burden said. “But now it’s as important as any other kind of voting and so it seems more peculiar, I think, to treat it in some different way.”

Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Shur at ashur@votebeat.org.

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Wisconsin’s free newsletter here.

Wisconsin Gov. Tony Evers disputes Madison’s argument that absentee voting is a privilege is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

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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.

This coverage is made possible through Votebeat, a nonpartisan news organization covering local election administration and voting access. Sign up for Votebeat Wisconsin’s free newsletter here.

Madison’s defense in missing ballot case: Absentee voting is a ‘privilege,’ not a right is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.