"What's especially concerning is that we have heard and seen examples from several municipalities where the clerk actually included instructions along with the absentee ballot that said only the voter can return their ballot," Disability Rights Wisconsin spokesperson Barbara Beckert said earlier this week. "Most voters are going to see that and accept that, 'Well, I guess I can't have someone assist me with returning my ballot so I guess I'm not going to be able to vote.'"
The federal Voting Rights Act allows voters with disabilities to receive assistance as long as the person helping them isn't the voter's employer, an agent of that employer, or an officer or agent of the voter's union.
Beckert declined to name the clerks she said are offering the faulty instructions but said they're located in a handful of counties, including Ozaukee, Waukesha, Portage and Rock.
The Centers for Disease Control and Prevention estimates that about a quarter of the nation's adult population has some type of disability. The American Association for People with Disabilities reported that 17.7 million people with disabilities reported voting in the 2020 presidential election.
Guaranteeing voting access to individuals with disabilities has been an ongoing fight in Wisconsin in the wake of Waukesha County Judge Michael Bohren's January 2022 ruling that Wisconsin Elections Commission guidance allowing clerks to use absentee ballot drop boxes conflicted with state law.
In his ruling, Bohren also asserted the commission erred in telling clerks that a family member or other person could return a ballot on behalf of a voter. Bohren said that guidance conflicted with state law, which he said prohibits delivering an absentee ballot on behalf of another individual "except where the law explicitly authorizes an agent to act on an elector's behalf."
That ruling was later stayed by the District 4 Court of Appeals, and the Wisconsin Supreme Court in July ruled 4-3 that absentee ballots must be delivered by mail or in person to a local clerk's office or designated alternate site. The majority also held that no one but the voter can return the voter's ballot in person but did not rule on whether voters can have someone else handle their ballot on its way to a mailbox.
Then came a separate lawsuit, filed in July by several voters with disabilities who asked a federal court to ensure they can receive help voting following the Wisconsin Supreme Court's decision that appeared to severely limit, if not eliminate, their ability to vote.
U.S. District Court Judge James Peterson, of the Western District of Wisconsin, in August ruled that federal law requires local clerks and election officials to provide assistance to voters with disabilities, regardless of what state statutes say or decisions by the Wisconsin Supreme Court.
Peterson also ordered the Wisconsin Elections Commission to tell the state's municipal clerks of the provisions provided in the federal Voting Rights Act for voters with disabilities.
Reminder to Clerks
Days after Peterson's ruling, the Wisconsin Elections Commission voted, 4-2, to issue the guidance to local election clerks.
"In administering future elections, all municipal clerks and their staff should comply with the above statutory requirement," according to the guidance document sent to clerks on Sept. 7.
The guidance also informs clerks that they do not need to confirm a voter's disability status if they identify as requiring assistance returning a ballot due to a disability. Clerks also do not need to confirm the identity of the disabled voter or the person's agent.
Martha Chambers, a plaintiff in the federal lawsuit who has been paralyzed from the neck down for more than 20 years since falling off a horse, cannot use her arms or legs to open doors, grasp an absentee ballot, place an absentee ballot in a mailbox or hand it to a municipal clerk.
Chambers said Thursday she has always received help from a third party when voting absentee and is frustrated that, despite Peterson's ruling and the subsequent guidance from the elections commission, there's an apparent lack of consistency on the matter among the state's more than 1,800 local clerks.
"It does concern me," Chambers said. "Every municipality should have the same directions. It doesn't seem that difficult. You would think it should be fairly simple."
After learning of problems some people with disabilities had submitting their absentee ballots, the agency sent a follow-up note to local clerks earlier this month reiterating that voters with disabilities are entitled to assistance when delivering their absentee ballot, elections commission spokesperson John Smalley said. The commission also addressed the matter in a newsletter and recent online training programs.
"Some jurisdictions are inserting absentee ballot instructions that say assistance is prohibited, without noting the important exception for voters with disabilities," the memo reads. "This is especially significant because last fall a federal judge issued a permanent injunction and declaration affirming the right of these voters to obtain assistance. Please ensure that your absentee ballot instructions do not contradict the federal court's order."
Beckert has asked the elections commission to update the uniform instructions for absentee voters provided to all election clerks to include the Voting Rights Act provisions, and to include similar information with absentee ballots when they are sent to voters.
"We have a big election coming up in April and I want to make sure that voters with disabilities, who need these accommodations, are able to understand their right to get the assistance that they need to vote," Beckert said.
Beckert encouraged individuals with concerns or questions on voter accessibility to contact Disability Rights Wisconsin at 844-347-8683 or email info@disabilityvote.org.
(c)2023 The Wisconsin State Journal (Madison, Wis.) Distributed by Tribune Content Agency, LLC.
