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On August 18, 2022, the U.S. Department of Justice (DOJ) filed a statement of interest in the federal court hearing the case, against the Wisconsin Election Commission.

The statement of interest was filed on behalf of several Wisconsin voters with disabilities to protect their ability to receive assistance when returning an absentee ballot.

In its statement, the DOJ said that no matter what the state law says, the right of disabled voters is guaranteed according to provisions in Section 208 of the Voting Rights Act and Title II of the Americans with Disabilities Act.

“Voters with disabilities are entitled to an equal opportunity to participate in absentee voting programs and must be provided reasonable modifications when necessary to avoid discrimination,” stated the DOJ.

Blind voters file lawsuit against the Wisconsin Election Commission

In July 2022, a progressive legal organization Law Forward filed a lawsuit on behalf of four voters with disabilities against the Wisconsin Election Commission (WEC) following a decision from the Wisconsin Supreme Court.

The Court prohibited the use of absentee ballot drop boxes, and left unanswered questions over the issue of absentee ballot assistance – which could include having another person return a ballot on behalf of a disabled voter.

Following the decision, Wisconsin Elections Commission Administrator Meagan Wolfe said in a news conference that state law requires individual voters to return their own ballots.

For the four voters who brought the lawsuit and many other voters with disabilities, returning the ballots on their own is an insurmountable challenge.

For example, some disabled voters have trouble leaving their homes or don’t have the use of their arms to physically place the ballot in a mailbox.

For many disabled voters absentee voting is the only way for them to vote during elections.

If they are unable to get assistance to return their ballots, it means they have effectively been prevented from casting their votes.

Measures against accessible voting

Since the last presidential election in 2020, Republicans in Wisconsin have taken a number of hostile measures against accessible voting.

The lawsuit that prohibited absentee ballots and called into question absentee ballot assistance was brought by a right-wing legal group on behalf of two voters in Waukesha County.

The Wisconsin Department of Justice, representing the WEC, put out a statement that it agrees with the voters that federal law protects absentee ballot return assistance and therefore there isn’t a controversy so the case should be dismissed.

What was even more alarming was that the Wisconsin Election Commission hasn’t officially stated that it will administer the upcoming elections while protecting this right.

The federal DOJ took the unusual step to intervene, because the state DOJ was noncommittal in its statements to protect the rights of disabled voters in Wisconsin.

The intervention by the U.S. DOJ is more significant because there was no indication from the Wisconsin Department of Justice that it’s going to enforce the voting rights of disabled voters, no comprehensive, definitive statement by the Wisconsin Elections Commission, no statement by the chief election official and the Wisconsin DOJ is asking that our case be dismissed.

The DOJ categorically affirmed the rights of voters with disabilities

In the 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.

The DOJ wrote that all voters, irrespective of whether they choose to vote absentee or not are entitled to protection under Section 208. A state cannot restrict this federally guaranteed right by defining the right to vote more restrictively than as federally defined.

The 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 is not 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.

The state cannot rely on such a discretionary, permission-based scheme that unlawfully narrows the scope of Section 208 right to assistance.

Final Thoughts

This is the first time in 12 years of bringing elections related lawsuits in Wisconsin that the U.S. Department of Justice has intervened in a case directly and points to the fact that the federal government is taking a keen interest in this case.

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