Carey v. Wis. Elections Comm'n
| Decision Date | 30 August 2022 |
| Docket Number | 22-cv-402-jdp |
| Parties | TIMOTHY CAREY, MARTHA CHAMBERS, SCOTT LUBER, and MICHAEL REECE, Plaintiffs, v. WISCONSIN ELECTIONS COMMISSION, and MEAGAN WOLFE, in her official capacity as Administrator of WEC, Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
Plaintiffs are four Wisconsin citizens who wish to vote in the November 2022 election. In the past, plaintiffs have used absentee ballots to vote because they have disabilities- including paralysis, muscular dystrophy, and cerebral palsy-that make it extremely difficult for them to vote in person. And they consistently use the assistance of third parties to return their ballots. But in July 2022, the Wisconsin Supreme Court decided Teigen v. Wisconsin Elections Commission 2022 WI 64, 976 N.W.2d 519, construing state law as prohibiting voters from obtaining assistance from a third party to return an absentee ballot to the municipal clerk. A few days later, defendant Meagan Wolfe, the administrator of defendant Wisconsin Elections Commission, stated during a news conference that “the voter is the one required to mail the [absentee] ballot.”
Plaintiffs say that they cannot comply with the state law at issue Wis.Stat. § 6.87(4)(b)1, because they are physically unable to hold a ballot and return it to the clerk and therefore need third-party assistance. So plaintiffs are faced with a dilemma. Do they violate the law by using assistance to vote absentee and risk having their vote thrown out or, worse being sanctioned for violating the law? Do they try to vote in person, risking their health and safety? Or do they give up their right to vote altogether?
Plaintiffs reject each of these options, so they filed this lawsuit contending that § 6.87(4)(b)1 violates their rights under the Voting Rights Act (VRA), the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the First and Fourteenth Amendments of the U.S. Constitution. They seek a declaration of their rights under federal law, an order enjoining defendants from enforcing § 6.87(4)(b)1 against them, and an order directing defendants to instruct municipal clerks on their duty to accommodate disabled voters. Dkt. 16. The United States has filed a brief under 28 U.S.C. § 517, agreeing with plaintiffs that the VRA and the ADA give them the right to choose a person to assist them with returning their absentee ballot. Dkt. 29. Defendants oppose the motion, contending that they aren't appropriate defendants because they haven't taken any adverse actions against plaintiffs, and there is no evidence that they are likely to do so in the future.
The court will grant plaintiffs' motion. Defendants don't dispute that there is an appreciable risk that plaintiffs' vote will be thrown out if they violate § 6.87(4)(b)1. Instead, defendants say that it is municipal clerks who are going to make that call in the first instance, so plaintiffs should have sued them instead. But defendants are also responsible for enforcing election laws, and it is defendants, not clerks, who are charged with providing guidance on how to apply the law.
Defendants say that they agree with plaintiffs that they are entitled to assistance in returning their absentee ballot. But that is just a litigation position; it doesn't communicate to voters what their rights are or to clerks what their responsibilities are. The statements and memos from defendants since Teigen was issued are either inconsistent with their litigation position or simply punt the question to more than 1,800 municipal clerks. This leaves disabled voters vulnerable and municipal clerks confused.
Voters shouldn't have to choose between exercising their federal rights and complying with state law. But that is the position that plaintiffs find themselves in, and that is in part because defendants have refused to provide needed clarification. If defendants cannot or will not give plaintiffs assurances that their right to vote will be protected, this court must do so. The Voting Rights Act is clear: disabled voters who need assistance in returning an absentee ballot are entitled to ask a person of their choosing for that assistance. The court will issue a declaration of plaintiffs' rights under the VRA and an injunction that ensures their rights will be upheld. Because the VRA provides plaintiffs with complete relief, it isn't necessary to consider plaintiffs' other claims.
Plaintiffs filed their motion as one for preliminary relief, but during the preliminary injunction hearing, the court asked the parties whether any further factual development was needed, and, if not, whether plaintiffs' motion could be converted into one for summary judgment. Neither side has identified any potential factual disputes that preclude entering permanent relief now. See Dkt. 37 and Dkt. 38. Defendants do object to the scope of plaintiffs' proposed injunction, but that's a legal question, not a factual one. The court has addressed defendants' concerns in the opinion and in the order granting declaratory and injunctive relief. But the parties haven't identified a reason for delaying judgment in this case, and the court cannot discern one, so the court will convert plaintiffs' motion for a preliminary injunction into a motion for summary judgment, grant relief, and close the case.
Plaintiffs are Wisconsin citizens who are registered to vote. They have consistently voted in past Wisconsin elections and intend to vote again in the November 2022 election, using an absentee ballot.
Timothy Carey lives in Appleton. He has muscular dystrophy, can't move any part of his body without assistance, and is always attached to a ventilator.
Martha Chambers lives in Milwaukee. She is paralyzed from the neck down, so she cannot move her arms or legs without assistance.
Scott Luber lives in Mequon. He has muscular dystrophy, and he cannot hold a ballot in his hand, place a ballot in a mailbox, or hand a ballot to a municipal clerk.
Michael Reece lives in Sun Prairie. He has cerebral palsy and is paralyzed from the chest down. He cannot hold a ballot in his hand, open the door to deliver it to a mail carrier, place it in a mailbox, or hand it directly to the municipal clerk.
In past elections, each plaintiff has relied on the assistance of a third party to return his or her absentee ballot.
Plaintiffs are challenging the validity of one sentence in Wis.Stat. § 6.87(4)(b)1 that describes the process to be used for returning an absentee ballot: “The envelope shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.” In 2020, the commission issued a memo that included the following interpretation of § 6.87(4)(b)1: “A family member or another person may . . . return the [absentee] ballot on behalf of a voter.” Dkt. 31, ¶ 24.
Two voters filed a lawsuit challenging the commission's memo, and the Waukesha County Circuit Court concluded that § 6.87(4)(b)1 requires voters to mail or deliver absentee ballots themselves; they may not give their ballot to a third party to do that for them. Dkt. 31, ¶ 26. The circuit court didn't consider the effect of its ruling on people with disabilities. Id., ¶ 28. In response to the circuit court's ruling, the commission rescinded the memo at issue. Id., ¶ 31.
The circuit court's ruling took effect for the April 2022 election. Plaintiffs provide examples of advice provided by municipal clerks in three counties during that election:
On July 8, 2022, the Wisconsin Supreme Court affirmed the circuit court's decision. See Teigen v. Wisconsin Elections Comm'n, 2022 WI 64, 976 N.W.2d 519. The court began its discussion by observing that the challenged memo from the commission does Id., ¶ 4. However, the court did not vacate the portion of the circuit court's order that prohibited third-party assistance for mailing an absentee ballot.
As for the issue about delivering absentee ballots, the supreme court concluded that the “voter must personally deliver” an absentee ballot to the clerk, id., ¶ 4, reasoning that “the phrase ‘in person' refers to a voter acting directly, not through an agent,” id., ¶ 75. The court rejected the commission's argument that the use of passive voice supported a view that voters themselves aren't required to return the ballot. Id., ¶ 79. The court also considered Sommerfeld v. Board of Canvassers of City of St. Francis, 269 Wis. 299, 300, 69 N.W.2d 235, 236 (1955), which held that “delivery of ballots by agent” is permitted when voting absentee. But the court concluded that Sommerfeld had been superseded by more recent statutes. Teigen, 2022 WI 64, at ¶¶ 80-83.
In a section of the lead opinion joined by Justices Ziegler and Roggensack only, Justice Rebecca Bradley briefly addressed arguments about federal preemption by the Voting Rights Act and the Americans with Disabilities Act. First, she wrote that the commission and Disability Rights...
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