WASHINGTON, D.C. — On Thursday, Aug. 18, the U.S. Department of Justice (DOJ) submitted a statement of interest (a statement by the solicitor general outlining the United States’ position regarding an ongoing lawsuit in which the DOJ isn’t a party) in a lawsuit challenging guidance provided by the Wisconsin Elections Commission (WEC) that requires voters to return their own absentee ballots without assistance. After the Wisconsin Supreme Court banned the use of drop boxes in the state, WEC issued further guidance around returning absentee ballots and stated that ballot return-assistance is no longer permitted for any method of absentee voting, including voting by mail. Voters with disabilities filed a lawsuit alleging that this guidance violates three federal laws: the Voting Rights Act (VRA) by denying the right of assistance in returning an absentee ballot, Section 504 of the Rehabilitation Act because recipients of federal financial assistance are discriminating on the basis of disability and Title II of the Americans with Disabilities Act (ADA) by discriminating on the basis of disability. Last Thursday, the DOJ submitted a statement of interest arguing that Section 208 of the VRA guarantees assistance to voters with disabilities who need assistance delivering their ballot, accommodations under state law cannot replace voters’ federally guaranteed right under Section 208, ballot return assistance for voters with disabilities is a reasonable modification under the ADA and federal laws including the VRA and ADA “supercede” the guidance of WEC.
In its statement, the DOJ asserts that Wisconsin’s election laws “interfere with the state’s ability to comply with Title II, frustrating the inclusion principles and broad reasonable modification mandate at the core of the ADA and harming individuals with disabilities trying to avail themselves of Defendants’ absentee voting program.” The DOJ argues that the federally guaranteed rights to voters with disabilities are required regardless of if state laws attempt to limit assistance. The statement concludes with the assertion that “Section 208 of the Voting Rights Act guarantees voters with disabilities a right to receive ballot return assistance. Title II of the ADA requires that voters with disabilities receive equal opportunity to participate in absentee voting programs, and that they be provided reasonable modifications when necessary to avoid discrimination.”