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Judge hears arguments in lawsuit seeking to expand Wisconsin absentee voting

The Republican-led Legislature and state's elections commission are asking for the suit to be dismissed

A sign says "Dane County Courthouse" on the outside of a building.
The Dane County Courthouse on Thursday, May 25, 2023, in Madison, Wis. Angela Major/WPR

A Dane County judge heard arguments Tuesday as Republicans seek to quash a lawsuit that would expand absentee voting in Wisconsin.

Progressives sued the Wisconsin Elections Commission in July to challenge absentee voting requirements in the closely-fought state. That includes a ban on absentee ballot drop boxes that went into effect last year following a 4-3 decision from Wisconsin’s Supreme Court.

The lawsuit, which was filed on behalf of the Democratic political action committee Priotities USA, the progressive Wisconsin Alliance for Retired Voters and a retired voter who lives in Dane County, argues such restrictions violate the right to vote as outlined in the state’s Constitution.

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“The provisions challenged in this case make it severely and unjustifiably more difficult for Wisconsinites to cast their votes and to have those votes count,” said David Fox, an attorney for the plaintiffs, during a motion hearing Tuesday. “A burden on absentee voting makes it harder for people to vote. It’s clearly a burden on the right to vote.”

But GOP lawmakers are joining the state’s biparistan elections commission in asking for the suit to be dismissed. Kevin LeRoy, an attorney for Wisconsin’s Republican-led Legislature, told Circuirt Court Judge Ann Peacock that Wisconsin’s Constitution does not explictily protect the right to vote absentee.

“The right to vote does not encapsulate the right to vote, specifically, by absentee ballot,” LeRoy said Tuesday.

The suit also challenges the state’s current deadline for fixing errors on absentee ballot envelopes, which is 8 p.m. on Election Day. It also argues that a requirement for a witness to sign each absentee ballot envelope is burdensome, espeically to Wisconsinites who live alone.

“More than 600,000 Wisconsin voters … do not have anyone in their household who can act as a witness,” the lawsuit says. “Many of these individuals also have limited mobility or health.”

Earlier this month, Peacock denied motions from the Association of Mature American Citizens and various Republican groups, including the Republican National Committee and the Republican Party of Wisconsin, which were seeking to join the lawsuit as intervenors. The Association of Mature American Citizens is a conservative advocacy organization representing people over 50.

Peacock said Tuesday she hopes to issue a decision on the motion to dismiss within the next 30 days. The case could eventually make its way the state’s Supreme Court, which flipped to liberal control when newly-elected Justice Janet Protasiewicz took office on Aug. 1.

The suit from Prioties USA is one of many ongoing disputes over voting rules in Wisconsin ahead of the 2024 presidential election. In 2020, Democratic President Joe Biden beat former Republican President Donald Trump by just over 20,000 votes in Wisconsin, or less than a percentage point. In the nearly evenly-divided state, four of Wisconsin’s last six presidential elections have come down to margin of less than 1 percent.

In Wisconsin, absentee ballots must be received by mail or returned in-person to a local clerk’s office, polling place or absentee counting location by 8 p.m. on Election Day in order to be counted. Local clerks may also set early voting hours, where people can fill out absentee ballots and return them on site beginning two weeks before Election Day.