Federal Court Protects Assisted Voting Rights for Wisconsin’s Disabled Voters

10.06.22 | The Boardman Clark I.D.E.A. Group

The right to vote is sacred. Since America’s founding, countless advocates have bravely fought to ensure that every citizen, no matter their race, religion, or gender, is able to exercise this fundamental right. While voting rights in the present day are more widely enjoyed than in the 18^th century, difficulties in reaching the ballot box still persist. In particular, the right for those living with disabilities to utilize third-party voting assistance has been the subject of recent high-stakes litigation.

In July 2022, the Wisconsin Supreme Court held in Teigen v. Wisconsin Elections Commission that Wis. Stat. § 6.87(4)(b)(1) prohibits the use of third-party assistance to return absentee ballots to municipal clerks. Based on the Teigen decision, the Wisconsin Elections Commission subsequently took the position that the voters themselves must mail the absentee ballot and that third-party assistance was not permitted.

But on August 30, 2022, the District Court for the Western District of Wisconsin held in Carey v. Wisconsin Elections Commission that the Voting Rights Act (VRA) preempts Wis. Stat. § 6.87(4)(b)(1) to the extent it prohibits third-party ballot return assistance to disabled voters who require such assistance and that, consequently, Wisconsin voters with disabilities have a right to receive assistance when submitting their ballot. 

Carey involved four Wisconsin citizens with disabilities who have conditions that make voting in person either physically impossible or unreasonably dangerous. Prior to Teigen, each of these voters used absentee ballots via third-party assistance without legal difficulty. But the Teigen decision forced them – and countless other Wisconsin citizens – to make one of three decisions: (1) continue to use third party assistance to vote and consequently risk legal sanctions and their vote being thrown out; (2) vote in person and risk their physical health and wellbeing; or (3) not vote at all and relinquish a right fundamental to participation in civic society. Instead of choosing one of these options, the voters filed a federal lawsuit against the Wisconsin Elections Commission to clarify and reaffirm their rights under the law.

The Western District separated the case into three main issues: Standing, Federal Preemption, and Scope of Relief. As to the first and third points, the court analyzed why the four voters had standing to sue the Wisconsin Elections Commission and determined they were entitled to declaratory and injunctive relief allowing them to use assistance when voting. Of particular interest, however, is the second point wherein the Western District considered whether the VRA preempted Wis. Stats. § 6.87(4)(b)(1).

Under the VRA, ​“any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice.” Application of this statute to the four plaintiffs seems clear – they all required specific assistance to cast their ballots, and the VRA explicitly allows such assistance. Despite the apparent conflict between federal and state law, the Wisconsin Elections Commission argued in response that other Wisconsin law ​“saved” Wis. Stat. § 6.87(4)(b)(1). However, the Western District summarily denied this contention.

Per the Court’s reasoning, the Wisconsin Election Commission’s interpretation of relevant Wisconsin law would have both granted municipal clerks impermissible discretion to follow or disregard state law and would effectively narrow rights explicitly granted by the VRA. Because neither of these effects could be tolerated, the Western District ruled that the VRA preempted Wis. Stat. § 6.87(4)(b)(1) to the extent it prohibited third-party ballot-return assistance to disabled voters requiring such assistance. By so ruling, the Western District struck down the Wisconsin Election Commission’s position as constituting a violation of federal rights and made clear that disabled Wisconsin voters can choose someone to return their ballot for them.

The circumstances faced by the voters in Carey highlight that while the right to vote is enshrined in law, it may not always be guaranteed in practice. Preserving this fundamental right requires constant diligence, effort, and care. This case serves as another small step in the right direction.