The federal government is supporting a Dane County Circuit Court ruling holding that technical errors in reporting addresses on absentee ballots do not disqualify those votes from being counted, according to a Court of Appeals brief filed this week.
A provision in the Civil Rights Act of 1964 called the "Materiality Provision" "applies to the entire voting process, not only to voter-qualification determinations," attorneys for the U.S. Justice Department wrote.
In addition, "rejecting an absentee ballot denies the right to vote, as broadly defined by the statute," they said. "Finally, the (state) Legislature’s argument that Wisconsin’s witness-address requirement is material merely because the requirement is mandatory under state law to vote by absentee ballot is tautological and, if accepted, would nullify the provision."
The friend-of-the-court brief was submitted by Assistant Attorney General Kristen Clarke, U.S. Attorney Gregory Haanstad, Assistant U.S. Attorney Niabi Schmaltz, and U.S. Department of Justice attorneys Tovah Calderon and Jonathan Backer.
The League's September, 2022, lawsuit sought a declaratory judgment to clarify Wisconsin state law concerning missing address information on absentee ballot return envelopes. Confusion arose after a Waukesha County Circuit Court ruling earlier that year prohibited the Wisconsin Elections Commission from using its existing guidance for correcting minor voter address errors without contacting the voter.
The League's suit named the Wisconsin Elections Commission, individual commissioners, and the state Legislature as defendants. Circuit Judge Ryan Nilsestuen ruled in favor of the League and the Legislature appealed.
State law "requires voters casting absentee ballots to do so in front of a witness who must complete and sign a written verification that includes the witness’s address," the federal attorneys said in their brief. Under a state law challenged by the League, "an absentee ballot 'may not be counted' if the certification is missing the witness’s address."
Some elections officials are interpreting the state law to reject voter ballots based on technical defects, such as a missing zip code, the brief said.
The federal Materiality Provision, however, is to be interpreted broadly, the lawyers said. The first clause defines the scope of the provision as “ 'error[s] or omission[s] on any record or paper relating to any application, registration, or other act requisite to voting.' ” The second clause defines the circumstances under which an error or omission can be used to deny a person the right to vote.
"Congress’s repetition of the word 'any' also makes clear that the statute applies beyond processes like registration that determine voters’ qualifications," the federal attorneys wrote.
The statutory definition of "vote" confirms a broad interpretation is correct, they said.
"That definition 'includes all action necessary to make a vote effective including, but not limited to, registration or other action required by state law prerequisite to voting, casting a ballot, and having such ballot counted,' ” the lawyers said. "On its face, that language applies the provision not just to determinations of voter qualifications, but to the entire voting process."
The Legislature, in its appeal, depends on an erroneous decision by the 3rd U.S. Circuit Court of Appeals, which held that the voting provision of the Civil Rights Act applied only to the 'process' of 'determining whether an individual is qualified to vote.' ”
The Third Circuit covers Pennsylvania, New Jersey, Delaware, and the Virgin Islands.
In addition, the feds argued, the Help America Vote Act of 2002 requires states receiving federal funding to take measures to reduce some voting errors.
Federal law does not require Wisconsin to allow absentee voting, but since the state does, it must use the broad definition of "vote" provided in federal statute. While state law allows errors to be corrected if local election officials choose to return the ballots to the voter, that is not what federal law requires, the lawyers said. In addition, the election officials are not required to provide the opportunity to correct the ballots; they are only permitted to do so.
"And voters — particularly service members or other citizens residing over seas — oftentimes will not have sufficient time to cure any defects on their absentee ballots, particularly if they submit them close to the voting deadline," they wrote.
Finally, the lawyers wrote, the state cannot override or alter the federal Materiality Provision requirements.
"While procedural requirements might help officials enforce the states’ qualifications, they do not themselves become voter qualifications simply because state law mandates them," they said.
"The Legislature’s contrary interpretation would nullify the Materiality Provision," they wrote.
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