Amid a federal lawsuit challenging a Wisconsin state Supreme Court decision mandating that only individual voters can return their absentee ballots in-person, the Justice Department filed a statement of interest this week, meaning a collection of arguments outlining the federal position.
The filing pushed back on arguments against the plaintiffs: disabled voters who named the Wisconsin Elections Commission and its administrator as defendants. The underlying lawsuit was filed in connection to the impacts on disabled voters in Wisconsin from the new policies regarding the return of absentee ballots, and the case argues, as summarized by Democracy Docket, that restricting the opportunities for disabled voters to receive assistance — even, evidently, from family members and caregivers — violates pieces of federal law including the Voting Rights Act, the Rehabilitation Act, and the Americans with Disabilities Act. It’s worth noting there was no documented, systematic election integrity problem underlying the decision to change the rules for returning ballots.
“Voters with disabilities are entitled to an equal opportunity to participate in absentee voting programs and must be provided reasonable modifications when necessary to avoid discrimination,” the Justice Department filing said. “The rights conferred by Section 208 of the Voting Rights Act and Title II of the ADA are rights squarely guaranteed, regardless of whether state laws or provisions otherwise limit such assistance.” As also noted in the filing, a portion of the Voting Rights Act is rather explicit in providing the legal framework for disabled voters to receive assistance. “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, other than the voter’s employer or agent of that employer or officer or agent of the voter’s union,” the law says. Voting, in the law’s terms, means the entire process of completing and casting a ballot rather than simply filling in the circles (or however else one might mark their choices).
“Allowing voters with disabilities to obtain any necessary assistance in delivering their completed ballots—the last, essential step of ensuring that one’s vote is counted, regardless of the method of delivery—therefore falls squarely within Section 208’s intended reach,” the department filing says at a later point, discussing a portion of the Voting Rights Act. “That the affected voters here are voting absentee, rather than in person, makes no difference in this statutory analysis.” There is a specific portion of Wisconsin law that characterizes absentee voting as “a privilege exercised wholly outside the traditional safeguards of the polling place,” but the Justice Department’s arguments state these provisions don’t eliminate the federal rights available for disabled voters.
The new rules for returning absentee ballots to local authorities in person essentially inherently discriminate on the basis of disability. The option remains broadly available for any voter — with no wide-reaching modifications to the policy available to allow disabled Wisconsinites to freely participate. Local municipal clerks handling election-related matters in Wisconsin are evidently permitted to make essentially reactive accommodations in individual cases involving disabled voters seeking help — but state law says, when asked, clerks must make such accommodations “whenever feasible,” not as a required step. The federal right to assistance contained within the Voting Rights Act involves proactive action, not tepid, limited reaction, the department says.