WASHINGTON, D.C. — On Monday, Oct. 2, four individual Wisconsin voters filed a federal lawsuit challenging a Wisconsin law that requires absentee voters to complete their ballots in the presence of a witness who can attest to the voter’s eligibility.
Under Wisconsin’s “witness requirement,” an adult witness must complete a written certificate containing a witness signature and address in order to vouch for the absentee voter’s qualifications. As prescribed by Wisconsin law, the witness is required to be a U.S. citizen over the age of 18, but does not have to be a registered voter. For military and overseas voters, the witness does not have to be a U.S. Citizen but does have to be over the age of 18.
The Wisconsin voters behind the new lawsuit allege that the absentee ballot witness requirement violates Section 201 of the Voting Rights Act (VRA), which prohibits denying the right to vote on the basis of a citizen’s failure to comply with a “test or device,” including the “requirement that a person as a prerequisite for voting…prove his qualifications by the voucher of registered voters or members of any other class.”
According to the lawsuit, the witness requirement constitutes an unlawful “test or device” under Section 201 “and because a voter’s failure to satisfy it results in the voter being denied the right to vote, Wisconsin’s Witness Requirement violates Section 201 of the Voting Rights Act.”
The lawsuit highlights the legislative origins of Section 201 of the VRA, which was enacted in order to outlaw a discriminatory post-Civil War voting practice adopted by many southern states wherein a prospective voter would need a “supporting witness” to affirm their qualifications. The complaint notes that “because only someone who was ‘already a registered voter in the county’ could serve as a supporting witness, this rule empowered registered White voters to prevent otherwise qualified Black neighbors from accessing the franchise by refusing to vouch for their eligibility.”
In addition to arguing that Wisconsin’s absentee ballot witness requirement is an unlawful “test” under the VRA, the lawsuit points to how the challenged requirement puts voters at “risk of disenfranchisement because of technical and immaterial witness-related errors.” In particular, the plaintiffs point to a Wisconsin statute providing that “when a certificate is missing the address of a witness, the ballot may not be counted.” The statute however, fails to define the terms “address” or “missing.”
The complaint asserts that “different Wisconsin municipalities…adopt different and inconsistent standards for absentee ballot witness addresses,” resulting in absentee voters facing “an ongoing threat that they will be disenfranchised because of shifting local interpretations of the Witness Requirement.” During the 2022 midterm elections alone, over 2,200 absentee ballots were rejected due to witness certificate issues, the lawsuit notes. In turn, the plaintiffs contend that the witness requirement alternatively violates the Materiality Provision of the Civil Rights Act, which protects against disenfranchisement on the basis of trivial errors that are unrelated to a voter’s eligibility. The plaintiffs ask the court to strike down the requirement for violating the VRA, or in the alternative, the Civil Rights Act.
Wisconsin’s absentee ballot witness requirement is concurrently being challenged in a separate state-level lawsuit alleging that the rule violates the Wisconsin Constitution. Two ongoing lawsuits also seek to clarify the definition of a missing address with regards to the absentee ballot witness certificate.