Judge rejects Madison’s stance on uncounted ballots

Molly Beck

Milwaukee Journal Sentinel

USA TODAY NETWORK – WISCONSIN

MADISON - A Wisconsin judge has rejected an argument put forward by Madison officials contending absentee voting is a privilege and not a right in a lawsuit filed by city voters whose ballots were not counted during the 2024 presidential election.

In his ruling, Dane County Circuit Judge David Conway echoed pushback from Wisconsin leaders to the city’s position.

'The Wisconsin Constitution’s voting guarantee makes no distinction as to the process by which citizens cast their ballots,' Conway wrote in a Feb. 9 order dismissing the city’s motion to dismiss the lawsuit. 'Our Supreme Court has recognized that those who vote absentee exercise the same constitutional right as those who vote at the polls.'

'... 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 do so.'

A group of Madison voters represented by the liberal law firm Law Forward sued city and county election officials in March over the city’s failure to count 193 absentee ballots cast during the 2024 presidential election.

The voters are accusing the former Madison clerk of disenfranchising their right to vote in a class-action lawsuit.

The city’s failure to count the ballots triggered a six-month investigation by the Wisconsin Elections Commission, which concluded then-Madison clerk Maribeth Witzel-Behl did not act urgently to find the ballots and took vacation time to bake cookies for the holidays instead of looking for them.

The commission ordered a series of changes to Madison’s practices that city officials have now nearly completed after initially pushing back on the commission’s authority to mandate them.

Madison Mayor Satya Rhodes-Conway, who is not related to the judge, said in a Feb. 6 interview with the Milwaukee Journal Sentinel that she wants the state Legislature to change the law that the city used to make the argument that Judge David Conway rejected this week.

She said the argument was made to keep municipalities from having to pay voters when ballots aren’t counted.

'If you look back over the past decade, there are lots of cases where municipalities failed to count a ballot for whatever reason, right? Mistakes happen. And so the real risk here is that every single municipality in the state of Wisconsin will potentially be liable for this kind of lawsuit where they could have to pay thousands, hundreds of thousands, potentially millions of dollars,' Rhodes-Conway said.

'We should, instead of being worried about having to pay damages, we should be investing those funds back into our clerk’s offices all across the state and to the integrity of the electoral process.'

Scott Thompson, an attorney representing the plaintiffs, pushed back against Rhodes-Conway’s contention that there are many cases of uncounted ballots in the state.

'I am unaware of instances where municipalities, for no reason, are not counting people’s absentee ballots. That is something I have never heard of, and it would be a shock to learn that any municipality in Wisconsin is baselessly not counting ballots, which is what happened here,' Thompson said.

'The city didn’t count 193 ballots, that’s the allegation, and then had enough time after they realized that they weren’t counted to get them into the official tally, but they didn’t take steps to make sure it happened,' he said. 'And so, yeah, there’s a lawsuit, but that is what happens when people are deprived of their constitutional rights by the government.'

Rhodes-Conway made similar comments in an opinion column published Feb. 11, which drew criticism from the Democratic chairwoman of the Wisconsin Elections Commission.

'I am flummoxed by Madison’s continuing attempts to avoid real accountability,' WEC chairwoman Ann Jacobs wrote on social media.

'They don’t want the WEC to give them orders, they don’t want people whose votes weren’t counted to have any remedy other than Madison being ordered not to do it again, and they don’t even think people who vote absentee have a right to have their ballots counted. These are not pro-voter positions.'

Michael Haas, Madison city attorney and a former WEC administrator, said Jacobs’ assertions were not true.

'The City of Madison does more to promote absentee voting than any other municipality in Wisconsin,' Haas said in a statement.

'We cooperated with the WEC investigation and its subsequent order — we did not challenge it. Above and beyond the WEC orders, the City has taken numerous concrete actions to prevent the human error that caused this mistake. And the former Clerk who oversaw the November 2024 election is no longer employed by the City.'

Haas also noted the commission voted Thursday, Feb. 11, to compliment the city on its speed at making changes in practice, 'steps that likely include more checks and documentation than any other municipality in the state.'

He said the city would not be contesting Conway’s ruling.

Conway, in his order, also rejected an argument put forward by Witzel-Behl that contended there is a difference between purposefully not counting ballots and inadvertently failing to do so.

'When an election official fails to count a valid absentee ballot, whether by negligence, recklessness, or malice, he or she deprives the absentee voter of that constitutional right,' Conway wrote.