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Federal judge rules that disabled Wisconsinites are entitled to receive help voting

Wisconsin State Journal - 9/1/2022

Sep. 1—Wisconsin voters with disabilities are entitled to receive third-party help mailing ballots or delivering them to a clerk, a federal judge ruled Wednesday.

The order comes after several voters with disabilities asked a federal court to ensure they can receive help voting following a Wisconsin Supreme Court decision and subsequent comments from the state's chief election officer that appeared to severely limit, if not eliminate, their ability to vote.

No matter what state statutes or recent state court decisions say, federal law permitting help for voters with disabilities preempts Wisconsin law, U.S. District Court Judge James Peterson of the Western District of Wisconsin said Wednesday.

"Voters shouldn't have to choose between exercising their federal rights and complying with state law," Peterson said. "But that is the position that plaintiffs find themselves in, and that is in part because defendants have refused to provide needed clarification."

Peterson also ordered the Wisconsin Elections Commission to tell the state's municipal clerks before Sept. 9 that the federal Voting Rights Act allows voters with disabilities to receive assistance as long as the person helping them isn't the voter's employer, an agent of that employer "or officer or agent of the voter's union."

"Even if the court's order imposes a small burden on defendants, that burden is justified by the clear violation of plaintiffs' federal rights," Peterson said.

In a statement Wednesday, the Elections Commission said its members would meet Sept. 6 to consider guidance to comply with the court's order.

The lawsuit followed the Wisconsin Supreme Court's 4-3 ruling that absentee ballots must be delivered by mail or in person to a local clerk's office or designated alternate site. The majority also held that no one but the voter can return his or her ballot in person. The state high court did not rule on whether voters can have someone else handle their ballot on its way to a mailbox. But a week after the ruling, Wisconsin Elections Commission Administrator Meagan Wolfe declared that, "the voter is the one who is required to mail their ballot."

The lawsuit was filed last month by several plaintiffs with disabilities who are represented by the liberal law firm Law Forward, against the Elections Commission and Wolfe.

Disability Rights Wisconsin spokesperson Barbara Beckert said the organization has "heard from voters who are angry, confused, and disenfranchised because Wisconsin courts and election officials have not upheld the protections in federal law for voters with disabilities."

She said those people should now feel confident to vote.

State Sen. Tim Carpenter, D-Milwaukee, praised the order and called for the Legislature to codify existing federal protections into state law to avoid confusion in the future.

The plaintiffs stated in court filings that many Wisconsinites with disabilities cannot vote if they can't receive help from somebody to mail their ballots for them or deliver them in person.

The plaintiffs asked the court to declare that Wisconsinites with disabilities are entitled to receive help returning their ballots. The plaintiffs alleged violations of the First and Fourteenth Amendments as well as numerous federal laws, including the Voting Rights Act and Americans with Disabilities Act.

Following the court order, an attorney for the conservative group Wisconsin Institute for Law and Liberty sent members of the Elections Commission a letter encouraging them to create a rule to ensure that assistance only applies to people who cannot personally deliver or mail a ballot.

WILL deputy counsel Luke Berg suggested the commission require people providing assistance certify that the voter they're helping cannot personally mail or deliver a ballot because of a disability.

"We don't disagree with Judge Peterson's legal logic and feel this is an important issue to have clarity on going forward," Berg said. "But, it is crucial that the Wisconsin Elections Commission does not implement this ruling in a way that creates a loophole that could compromise election integrity — we are taking action today to make sure the commission is aware of this risk, and applies the law faithfully."


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