MILWAUKEE (CN) - The Wisconsin appeals court reversed on Wednesday a temporary injunction by the circuit court that would allow visually impaired voters to request emailed absentee ballots to be digitally marked and returned in person.

In 2024, Disability Rights Wisconsin and the League of Women Voters of Wisconsin filed suit against the Wisconsin Elections Commission, alleging the present absentee voting scheme is unlawful to print-disabled absentee voters because they cannot cast their ballot privately and without assistance.

Specifically, they argued that this violates the Americans with Disabilities Act, the Rehabilitation Act, and Article III of the Wisconsin Constitution, which states that "all votes shall be by secret ballot," according to the appellate brief.  

As a remedy, before ruling on the merits of the complaint, Dane County Circuit Court judge Everett Mitchell granted a temporary injunction ordering WEC to make available an option for print-disabled voters to request and receive electronic absentee ballots that can be marked using an at-home accessibility device. The Wisconsin Legislature intervened in the case and appealed.

On Wednesday, the District 2 appellate court quashed the temporary injunction in a written opinion by presiding Judge Mark Gundrum that lashed out at the lower court's "disturbing" orders.

"The court apparently believed, erroneously, that the status quo was not the law in effect when plaintiffs filed this action but the law as it was 13 years earlier," Gundrum wrote in his opinion.

The third criterion for granting an injunction requires that the injunction would preserve the status quo or current law. In this case, the status quo at the time would have been Act 75, which prohibits electronically distributed absentee ballots except for military and overseas voters.

Gundrum scolded the circuit court, questioning how it somehow misunderstood the framework for granting injunctive relief entirely and "significantly disrupted" the status quo: "With its injunction orders, the court invalidated a duly enacted law, doing so on the basis that it might one day determine that the law is invalid."

He also cited parts of the hearing transcript which shows that, at the beginning of the hearing, Mitchell seemed to understand that the disability rights group wanted to change the status quo.

This case was not the first in which Wisconsin's absentee voting laws were thrown into flux. Beginning in 2000, absentee voters could request an electronic ballot from their local clerk if there wouldn't be enough time for the ballot to be returned by regular mail. Former Governor Scott Walker changed that.

In 2011, Walker enacted Act 75 to prohibit absentee voters from requesting electronic ballots unless they were in the military or overseas. Then, in 2016, a federal court judge found that Act 75 was unconstitutional under the First and 14th Amendments of the United States Constitution and permanently enjoined the Wisconsin Elections Commission from enforcing the law. In 2020, the Seventh Circuit Court of Appeals reversed the federal court ruling and reinstated the law.

In other words: the law was replaced with a new law, then changed back, then changed again, then changed back, and has now been changed again. For those keeping track, Wednesday's appellate opinion reinstated the original wording of Act 75.

Absentee voting itself has a tumultuous history in the Badger State, where elections often come down to a difference of less than 50,000 votes. There have been ongoing disputes over ballot drop boxes, witness signature requirements, and ballot spoiling, to name a few.

In addition to the circuit court's temporary injunction, Mitchell ordered that the ballots delivered electronically to print-disabled absentee voters be "capable of being read and interacted with, including marked, by a voter with a print disability using digital assistive technology."

To implement this order, the elections commission would have to develop, approve, and provide training for almost 2,000 local clerks, then communicate that change to voters, according to the hearing transcript cited in the appellate opinion.

The appellate court also raises a security concern if absentee voters can self-certify that they are print-disabled. It's easy to prove that a voter is in the military or living overseas, Gundrum asserts, but it may be impossible to protect against voter fraud if just anyone can mark a ballot digitally at home.

The legislature brought this same concern in its own appellate brief as an intervenor, and Senate Majority Leader Devin LeMahieu commended the appellate court's ruling in a statement.

"Allowing courts to decide who can vote from home, using the internet, would weaken election integrity and hurt voters' faith in our elections. The court's ruling is a victory for the rule of law and election security in Wisconsin."

The petitioners could not be immediately reached for comment on whether they will continue to pursue their constitutional and civil rights claims in the circuit court.

Source: Courthouse News Service