August 22, 2022

In April, a Wisconsin judge heard a case by the deep money front group Wisconsin Institute for Law and Liberty, arguing that disabled voters did not exist and therefore did not need drop boxes or any other special considerations.

Unfortunately, the Wisconsin Election Commission took things a step further and decided that a disabled voter had to personally put the absentee ballot in the mailbox themselves. Obviously, this disenfranchised many disabled voters who were simply unable to get to a mailbox, much less hold the envelope and put it in said mailbox.

If this sounds like it's in violation of a number or federal laws, including the American Disability Act and Voting Rights Act, that's because it is. At the end of July, Law Forward, a pro-democracy law firm, filed a lawsuit in federal court on behalf of four disabled voters which pointed out these facts. The lawsuit states that the four plaintiffs - two of whom have muscular dystrophy, one has cerebral palsy and one is paralyzed from the neck down - were being denied their right to vote by not accommodating their needs.

Because both the Wisconsin Department of Justice and the Wisconsin Election Commission gave some mealy-mouthed, vague statements in response to the lawsuit, the U.S. Department of Justice (DOJ) felt compelled to take the unusual step of intervening in this case. They explained the facts in no uncertain terms and called the state Republicans' efforts to suppress the rights of disabled voters as irrelevant:

In the Thursday filing, the DOJ forcefully stated that Section 208 of the Voting Rights Act (VRA) and Title II of the Americans with Disabilities Act (ADA) protect the right to get assistance whether for in-person or absentee voting.

“Accordingly, all voters — whether they choose to vote absentee or not — who require assistance due to disability are entitled to Section 208’s protection, and ‘a state cannot restrict this federally guaranteed right’ by ‘defining terms [such as ‘vote’] more restrictively than as federally defined,’” DOJ wrote. “Any distinction that state law may make between in-person voting and absentee voting, see, e.g., Wis. Stat. § 6.84 (‘[V]oting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place’), therefore is irrelevant to the conclusion that Section 208’s federally guaranteed right applies to absentee voters.”

DOJ also wrote that a provision in state law which requires municipal clerks to “make reasonable efforts to comply with requests for voting accommodations made by individuals with disabilities whenever feasible,” isn’t enough. DOJ argues that this leaves voting access up to the subjective decisions of clerks over what counts as “reasonable” and “feasible” when the protections of the VRA are much broader.

“In other words, state law merely requires local election officials to consider granting reasonable accommodation requests from voters with disabilities, based on those local officials’ subjective sense of reasonableness and feasibility,” the agency wrote. “Relying on such a discretionary, permission-based scheme unlawfully narrows the scope of Section 208’s right to assistance, which is an affirmative right to any necessary assistance that does not hinge on the vagaries of local election officials’ discretion and judgment.”

The ruling won't help with the fall primary which was held on August 9th, but hopefully the court will reach a favorable decision by the general elections in November. We have a dumb senator we need to get rid of.

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