Judge Rejects Democrat Lawsuit Challenging Wisconsin Absentee Voting Requirements

Poll workers sort out early and absentee ballots at the Kenosha Municipal building on Election Day on Nov. 3, 2020, in Kenosha, Wis. AP Photo/Wong Maye-E

A federal judge has dismissed a lawsuit claiming that Wisconsin’s requirement for witnesses to sign for absentee voters clashes with federal law.

The claims by plaintiffs, four voters represented by Democrat firm Elias Law Group, are based on faulty interpretations of the law, according to U.S. District Judge James Peterson.

The challengers said the Voting Rights Act unilaterally bars requiring absentee voters to prove their qualifications, making the Wisconsin requirement illegal. The act states in part that “no citizen shall be denied, because of his failure to comply with any test or device, the right to vote in any federal, state, or local election conducted in any state or political subdivision of a state.” It defines “test or device,” in part, as any requirement that makes a person “prove his qualifications by the voucher of registered voters or members of any other class.”

However, that interpretation of the federal law is not correct, Judge Peterson said in his May 9 ruling.

“Plaintiffs say that Wisconsin law requires the witness to do more than ensure that the voter followed the proper procedure in preparing the ballot; rather, the witness must also certify that the voter is eligible to vote,” he said. “But that interpretation is inconsistent with the text and purpose of the statute, and it is inconsistent with how the law has been interpreted since it was enacted. Even the plaintiffs themselves do not say in their declarations that they believe they need to find a witness who can certify their qualifications to vote.”

In Wisconsin, any qualified voter who is “unable or unwilling” to vote in person is eligible for an absentee ballot. The law states that among requirements to vote by mail, another adult must observe the voter filling out the ballot and signing a statement that reads, in part, that “the above statements are true and the voting procedure was executed as there stated.”

As the “above statements” include the attestation from the voter that he or she is a resident of Wisconsin and entitled to vote in the state, plaintiffs said the requirement is illegal under federal law.

However, government officials argued that the witnesses only confirm the second part of the statements, which states that the voter certifies that he or she showed the enclosed ballot to the witness and that he or she marked the ballot and placed it in the envelope without assistance.

“If defendants are correct, there would be no violation of the Voting Rights Act. As other courts have held, a witness does not vouch for a voter’s qualifications by simply confirming with a signature what he or she observed,” said Judge Peterson, an appointee of former President Barack Obama.

He said that the phrase “the above statements” is ambiguous but that the plaintiffs’ interpretation “simply does not make any sense.”

If they were correct, “every witness would have to determine the voter’s age, residence, citizenship, criminal history, whether the voter is unable or unwilling to vote in person, whether the voter has voted at another location or is planning to do so, whether the voter is capable of understanding the objective of the voting process, whether the voter is under a guardianship, and, if so, whether a court has determined that the voter is competent,” according to Judge Peterson.

“If plaintiffs’ interpretation were correct, it would mean that countless absentee ballots over decades were invalid because the witness certified that the voter was qualified to vote and met the other requirements in the first voter certification, even though the witness had no basis for such a certification,” he said.

The challengers never provided evidence of any witnesses being penalized for not confirming a voter’s qualifications, and the Wisconsin Elections Commission’s guidance does not mention witnesses taking any steps to confirm voters are eligible to vote, the ruling noted.

The lawsuit also stated that the witness requirement violates the Civil Rights Act, which bars people from “[denying] the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under state law to vote in such election.”

The Wisconsin Elections Commission, the defendant, declined to comment.

The law group did not return an inquiry.

The organization Restoring Integrity and Trust in Elections, which lodged an amicus brief in support of the government in the case, welcomed the ruling.

“It’s essential that people voting by mail follow the law in doing so, and Wisconsin has implemented a witness signature requirement that helps ensure they do just that,” Derek Lyons, president of the group, said in a statement. “This case marks another example of liberal activists’ transparent and shameful efforts to co-opt important civil rights legislation for their partisan agendas.”