Dave Nusberger, who lives in the Village of Bloomfield near Lake Geneva, said his wife tried to submit his mail-in ballot on his behalf to village officials during the election, but his ballot was not accepted. He said his wife had not mailed in their ballots, so she tried to turn them in during the day of the election.

"She explained to them that she did not have time to mail them in," said Nusberger. "They took hers, but they wouldn't take mine, because I wasn't there."

What happened to Nusberger is what disability rights advocates were trying to prevent from happening before the election and it’s an issue that the state Supreme Court will be hearing oral arguments on starting on Wednesday, April 13. It stems from recent court decisions interpreting state law that says “the [absentee ballot] envelope shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.”

Nusberger has chronic obstructive pulmonary disease (COPD) a chronic inflammatory lung disease and uses a tracheostomy to breath.  

Nusberger said he was not present with his wife when the ballots were submitted because of his medical condition, which he said his wife explained to the village clerk. 

“I'm handicapped. I'm on oxygen. I can't get around anymore. It makes no sense. This is crazy,” said Nusberger, who has run for Bloomfield village trustee in the past and had wanted to vote for the contested county board seat in his district as well as the state court of appeals judge seat up for election.

Case background

The village of Bloomfield did not return calls for comments about the ballot rejection. However, many municipalities announced they would not be accepting ballots from anyone other than the voters after a recent court rulings.

In a 4-3 ruling in February, the Wisconsin Supreme Court let stand Waukesha County Circuit Court Judge Michael Bohren’s decision that says voters cannot give their absentee ballots to another person to mail or to hand over to an election clerk.

The lawsuit over returning ballots was brought in 2021 by two men represented by the conservative Wisconsin Institute for Law & Liberty, arguing the law explicitly states, “the [absentee ballot] envelope shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.”

One of the reasons for the lawsuit was to prevent ballot harvesting, a practice in which political operatives collect absentee ballots from voters' homes and drop them off at a polling place or election. 

However, at the same time, the federal Voting Rights Act states, “Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice.”

Additionally, under the Americans with Disabilities Act (ADA), “No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subject to discrimination by any such entity.”

Because of the confusion some clerks were having, the League of Municipalities issued guidance to municipalities saying, “Ultimately, each clerk will need to decide what to do, taking into consideration both state and federal law, the different ways the absentee ballot statute can be interpreted, and the risks of choosing one option over another. Unfortunately, any decision brings with it the potential for dispute and litigation.”

For instance in Racine, the city clerk there stated that they were accepting absentee ballots from authorized representatives. “I refuse to be the obstacle that prevents Americans with disabilities from submitting their absentee ballots,” said Racine City Clerk Tara Coolidge.

State Sen. Van Wanggaard, R-Racine, has since filed an elections complaint against the City of Racine’s mayor and clerk alleging the city violated state law by accepting absentee ballots delivered by someone who is not the voter.

In arguing that Racine violated the law, Wanggaard said, “The law is the law … The City of Racine is allowing ballot harvesting, but other municipalities voting in the same election are not. This is granting Racine voters additional rights, and an outsized influence in those elections.”

The state Supreme Court is scheduled to hear oral arguments on the Wisconsin Institute for Law & Liberty's case starting Wednesday, April 13, and a decision is expected by this summer on what the rules will be for the Aug. 9 primary and Nov. 8 general election, when Wisconsin residents will vote for governor, U.S. senator and other offices.

Concern for others 

Nusberger's wife, Kathleen, said in the past she has brought in her husband's ballot and there weren't issues. 

“I think it’s incorrect. It’s a sealed ballot. It’s just turning it over to be counted," said Kathleen Nusberger, who was caught off guard when the clerk wouldn't accept her husband's ballot without him being present. 

And by that point, it was too late to send it in the mail and he wasn't in good enough health to get to the village hall himself, she said. 

Dave Nusberger said he is concerned about other residents who might have a disability, who may not be able to vote in the future because of a similar situation.

For him, voting is a big deal. 

"I don't care how small or big it is, I have to vote," Nusberger said. "It's my obligation so I do it." 

Nusberger still has his un-submitted absentee ballot with him.

"I still got the ballot," Nusberger said. "It's never been opened."