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Federal lawsuit claims Elections Commission, Wisconsin high court could disenfranchise disabled voters

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People with disabilities risk consequences for exercising their right to vote after the Wisconsin Supreme Court said absentee ballots returned in person must be done so by the voter, according to a federal lawsuit filed in Madison Friday.

The lawsuit, against the Wisconsin Elections Commission and its administrator Meagan Wolfe, also challenges Wolfe’s assertion — in response to the court’s ruling — that only voters can deposit their ballots in the mail.

The plaintiffs, all of whom live with disabilities, state many Wisconsinites with disabilities simply cannot vote if they can’t receive help from somebody to mail their ballots for them or deliver them in person.

“When a state makes it impossible for some voters with disabilities to vote at all, it violates the U.S. Constitution,” the lawsuit states.

The plaintiffs are asking the U.S. District Court in the Western District of Wisconsin to declare that Wisconsinites with disabilities are entitled to receive help returning their ballots. The plaintiffs allege violations of the First and Fourteenth Amendments as well as numerous federal laws, including the Voting Rights Act and Americans with Disabilities Act.

The plaintiffs are being represented by attorneys at the law firm Law Forward as well as attorneys from the firms Stafford Rosenbaum and Wilmer Cutler Pickering Hale and Dorr.

Just over three months out from the Nov. 8 general election, the lawsuit states, “many Wisconsin voters with disabilities face the imminent threat of discrimination or disenfranchisement, both of which are prohibited under federal law.”

An Elections Commission spokesperson did not immediately respond to a request for comment.

In early July, the Wisconsin Supreme Court ruled 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 court did not rule on whether voters can have someone else handle their ballot on its way to a mailbox.

But one week later, Wolfe told the media, “the voter is the one who is required to mail their ballot.”

“In combination with (the Wisconsin Supreme Court ruling), Administrator Wolfe’s comments delivered a disturbing message to voters with disabilities: ballot-return assistance is prohibited in all circumstances throughout Wisconsin,” the lawsuit states.

Clarification from WEC

Following Wolfe’s comments, Elections Commission spokesperson Riley Vetterkind said her comment shouldn’t be interpreted as a policy statement or statutory interpretation. Instead, he said, it was a reference to state law that says absentee ballot envelopes “shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.”

Under the Wisconsin Supreme Court decision and Wolfe’s application of the decision, the only way for the plaintiffs to lawfully vote is by physically returning their absentee ballots in person or by mail without help from a third party, the complaint states. But voting in such a way would be impossible for many Wisconsinites including the plaintiffs, some of whom live with cerebral palsy, muscular dystrophy and paralysis from the neck down, the lawsuit states.

Because of the court decision and Wolfe’s interpretation of Wisconsin law, the complaint states, “Plaintiffs are faced with an impossible, and unlawful, choice: abstain from voting altogether or risk that their ballots will be invalidated, or that their only available method to vote absentee (ballot-return assistance) could subject them to prosecution.”

That disenfranchisement, the plaintiffs state, is explicitly prohibited under several laws including the Americans with Disabilities Act. Under that law, public entities must create accommodations to avoid discriminating on the basis of a disability.

Among the Wisconsinites who filed the lawsuit is Timothy Carey, who lives with Duchenne muscular dystrophy and is unable to move his body, though he can use his mouth to control a power wheelchair to move around his home. Carey, who the lawsuit states requires a ventilator at all times, has always voted by absentee with the assistance of a third party.

Another plaintiff, Martha Chambers, has been paralyzed from the neck down since falling off a horse. She cannot use her arms or legs to open doors, grasp an absentee ballot, place an absentee ballot in a mailbox or hand it to a municipal clerk, the lawsuit states. Chambers has always received help from a third party when voting absentee, the lawsuit states.

The 2020 election is over. Here’s what happened (and what didn’t)

The 2020 election was “the most secure in American history,” according to the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, which coordinates the nation’s election infrastructure.

While a handful of voters risked going to prison by attempting to vote twice or in the name of a dead relative, as happens in any election, no evidence of widespread fraud has ever been produced in Wisconsin or elsewhere.

Yet, many continue to question some of the practices clerks relied on to encourage eligible voters to cast ballots and make sure their votes were counted amid the first election in more than 100 years held during a pandemic.

The Wisconsin State Journal has covered every twist and turn of this debate in scores of stories. But here are a few that offered some broader context about what happened, and didn't happen, in the election of 2020.

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The state has multiple, overlapping safeguards aimed at preventing ineligible voters from casting ballots, tampering with the ballots or altering vote totals.

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Nothing in the emails suggests there were problems with the election that contributed in any meaningful way to Trump's 20,682-vote loss to Joe Biden.

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"Despite concerns with statewide elections procedures, this audit showed us that the election was largely safe and secure," Sen. Rob Cowles said Friday.

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The grants were provided to every Wisconsin municipality that asked for them, and in the amounts they asked for. 

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"Application of the U.S. Department of Justice guidance among the clerks in Wisconsin is not uniform," the memo says.

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YORKVILLE — The Racine County Sheriff’s Office announced in a Thursday morning news conference that it has identified eight cases of what it believes to be election fraud at a Mount Pleasant nursing home.

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The memo states that state law gives the Audit Bureau complete access to all records during an audit investigation and federal law and guidance does not prohibit an election official from handing over election records.

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Drop boxes were used throughout Wisconsin, including in areas where Trump won the vast majority of counties.

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"I don't think that you instill confidence in a process by kind of blindly assuming there's nothing to see here," WILL president and general counsel Rick Esenberg said.

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The report is the latest to show that there was not widespread fraud in Wisconsin.

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The clear insinuation was that someone not qualified to conduct an election improperly influenced these vulnerable voters. But the Wisconsin State Journal could not confirm the data. 

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The turnout at nursing homes in Brown, Kenosha, Milwaukee and Racine counties in 2020 was not much different from the turnout in 2016.


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