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Wisconsin: Protecting Voters and Democracy During the Pandemic

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Wisconsin Voters and Organizations Sue Election Officials to Make Voting in Coming Elections Safe, Secure, and Accessible

Lawsuit Says April 7 Election Shook Public’s Faith in Democracy

WASHINGTON, D.C. – On May 18, 2020, a coalition of Wisconsin voters and organizations that work to mobilize Wisconsin voters sued state election officials for violating federal laws that protect the right to vote. The Wisconsin Elections Commission’s failure to properly manage the April 7 election, held amid the expanding coronavirus pandemic, violated federal statutes and the U.S. Constitution, which protects every eligible voter’s right to vote. Today’s suit was filed on behalf of three registered Wisconsin voters as well as Disability Rights Wisconsin, which advocates for human and legal rights on behalf of disabled Wisconsin residents, and Black Leaders Organizing for Communities (BLOC), a group that engages members of the Milwaukee Black community in voting and the political process.

The suit asks the court to remedy Wisconsin’s failure to implement measures to ensure that all Wisconsin voters will be able to freely and safely participate in the upcoming August and November elections. 

“Wisconsin’s April 7 election was a disaster for the voters of the state and for our democracy,” said Rachel Goodman, counsel for Protect Democracy. “Tens of thousands of voters were disenfranchised, and tens of thousands more were forced to risk their health in order to vote. We owe it to all Wisconsin voters to make sure the system doesn’t fail them again.”

During the April 7 election, Wisconsin officials failed to take needed action to allow voting during a pandemic, leading to mass confusion and disenfranchisement. Failures related to the absentee ballot systems left many voters without a way to vote from home, and in some places around the state, safe in-person voting options were unavailable. For example, in Milwaukee, which normally operates 180 polling places, only five were open. This meant long lines, inability to socially distance, and intimidating conditions for those who sought to vote on Election Day.

Plaintiff Melody McCurtis voted in person in Milwaukee. To cast her ballot, she was forced to wait in line for more than two-and-a-half hours, surrounded by other people who were not maintaining social distance–thereby risking her health and the health of immunocompromised family members. “Our democracy doesn’t work if voters are too intimidated by unsafe polling places to vote,” said Ms. McCurtis. “I deserve to have my voice heard.” 

Plaintiffs Jill Swenson and Maria Nelson are voters for whom in-person voting was not an option as a result of their health status. Both were prevented from casting absentee ballots through no fault of their own. Ms. Swenson, who lives alone, suffers from a chronic lung disease; she was disenfranchised when her ballot was rejected because she could not get it witnessed as a result of social distancing. “I should never have had to choose between casting a ballot and risking my health,” she said. Ms. Nelson is undergoing treatment for breast cancer and never received an absentee ballot, although she requested it on time. “I followed the rules and yet I was still not able to vote,” said Ms. Nelson. “It felt like one more thing that cancer took away from me.”

The organizational plaintiffs, Disability Rights Wisconsin and BLOC, were impeded in their efforts to educate and mobilize voters in advance of the April 7 election. 

“This lawsuit aims to make sure that the coming elections are safe and accessible for all Wisconsin citizens, no matter who they are, where they live, or what health conditions they have,” said Jonathan Manes, attorney at the MacArthur Justice Center. “We are asking the court to direct simple, commonsense measures necessary to protect the fundamental right to vote, so that the pandemic doesn’t imperil the foundation of our democracy.”

The suit seeks a court order to ensure sufficient in-person voting opportunities that permit social distancing and have other safeguards against the spread of coronavirus. It also asks the court to ensure that Wisconsin’s absentee ballot system functions effectively during a pandemic by requiring that absentee ballot request forms be sent to every registered voter in time to enable them to vote successfully; that drop boxes be provided for voters to safely return completed absentee ballots; and that the Elections Commission mount a major voter education campaign to inform voters of their options well in advance. 

Protect Democracy, the MacArthur Justice Center, and the law firms of O’Melveny & Myers, Rathje Woodward, and Stafford Rosenbaum filed the lawsuit.

The defects of the April 7 election and the inability of the Wisconsin Elections Commission to protect Wisconsinites’ fundamental rights without judicial intervention unfortunately fit a larger pattern visible over the past several years in Wisconsin. “The right to vote in Wisconsin and the basic premises of democracy in this state have been repeatedly assailed in the past few years,” said Jeffrey A. Mandell of Stafford Rosenbaum LLP, one of the Wisconsin-based counsel in this case. “Individuals, organizations, and lawyers committed to the rule of law and to preserving democracy in Wisconsin must continue to fight these battles,” he added.

The initial filing is available here.

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Protect Democracy is a nonpartisan nonprofit organization dedicated to preventing American democracy from declining into a more authoritarian form of government.

The Roderick & Solange MacArthur Justice Center is a national, nonprofit law firm dedicated to protecting civil rights and fighting unfairness in the criminal legal system through litigation at the trial, appellate, and Supreme Court levels. Founded in 1985, and now with offices in Illinois, Louisiana, Mississippi, Missouri and Washington D.C, the MacArthur Justice Center works to protect the rights of the poor, the marginalized and the vulnerable in the criminal justice system, combat racial discrimination, stop the punishment of poverty, fight unjust prosecutions and police misconduct, and vindicate the rights of people who are imprisoned and detained.

O’Melveny & Myers LLP is an international law firm with a vibrant and award-winning pro bono practice.  O’Melveny has been involved in several major voting rights cases and continues to work in this increasingly critical area of our democracy.

Stafford Rosenbaum LLP has been serving clients in Wisconsin and beyond for more than 140 years. Stafford Rosenbaum is a full-service law firm that represents businesses, individuals, community organizations, and government officials. The firm has always been engaged in the most important issues facing Wisconsin, and in the past few years has expanded its work to include a new focus on election- and political-law disputes. 

Rathje Woodward LLC is a full-service law firm with offices in Madison, Wisconsin, and Wheaton, Illinois. As part of its commitment to ensuring good government in Wisconsin, Rathje has represented individuals and non-profit entities in lawsuits to end the extreme gerrymandering of Wisconsin’s legislative districts for partisan purposes, and to prevent the disenfranchisement of Wisconsin voters.

A PDF is available here.

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