Appeals Court: Electronic ballots only for military, overseas absentee voters

Receiving an electronic ballot should only be allowed for military and overseas absentee voters, according to a ruling Wednesday by the Court of Appeals II.

The case began April 16, 2024, when Disability Rights Wisconsin, League of Women Voters of Wisconsin and four citizens filed a complaint against the Wisconsin Elections Commission and its members seeking electronic ballots, alleging the current absentee voting scheme is unlawful for print-disabled absentee voters. Plaintiffs claim the current absentee voting rules does not afford them the ability to cast their absentee ballot votes independently and privately since they need someone’s help to complete their ballots.

The plaintiffs moved for a temporary injunction ordering the WEC “to make available” for print-disabled voters an option to receive an electronic absentee ballot that could be marked at home with an at-home accessibility device. At that point, the Legislature moved to intervene, which the circuit court granted, making it a party in the lawsuit. When the circuit court ordered the injunction, the Legislature appealed.

Currently, under Act 75, the state limits electronic absentee ballots to military and overseas absentee voters. In response to the plaintiffs’ request, attorneys for the WEC argued that sending electronic ballots to “a new class of voters is a change in that law and is not permitted in a temporary injunction motion. The plaintiffs are not asking to preserve the status quo, which is what temporary injunctions are for. They’re asking to change current law.”

The Court of Appeals agreed, writing “a temporary injunction may only be issued if it ‘is necessary to preserve the status quo.’” In this case, the status quo requires electronic ballots to only go out to military and overseas absentee voters.

The court further wrote that determining if a voter can successfully mark a paper ballot is not as objective or as easily proven as whether a voter is in the military or living overseas.

“Self-certification may not be an adequate remedy to allow truly print-disabled voters to receive an electronic ballot while at the same time protecting against persons fraudulently claiming a print disability so that they too may receive ballots electronically,” the court wrote.

The court noted the print-disabled plaintiffs said in their affidavits that they have successfully cast their votes time and time again for the last 14 years since the enactment of Act 75.

“The circuit court erroneously exercised its discretion by issuing temporary injunction orders that would have changed and, indeed, significantly disrupted the status quo,” the Appeals Court wrote.