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Madison Can Face Liability Over Uncounted Ballots, Judge Rules

The court held that valid absentee ballots carry the same constitutional protection as in-person votes.

On Election Day, April 4, 2023, pedestrians walk past a “Vote Here” sign at the entrance to the Memorial Union at the University of Wisconsin–Madison, one of several official polling places for UW–Madison students living on campus. Althea Dotzour/UW–Madison
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Judge David Conway rejected Madison’s legal argument that it isn’t financially liable for disenfranchising voters because absentee voting is a privilege, not a right.

Overview

  • Dane County Judge David Conway denied Madison’s bid to dismiss a class-action suit over 193 uncounted absentee ballots from November 2024.
  • He rejected the city’s reliance on a statute labeling absentee voting a “privilege,” ruling that failure to count a valid absentee ballot—through negligence, recklessness, or malice—deprives a voter of a constitutional right.
  • The lawsuit will proceed against the City of Madison, former clerk Maribeth Witzel-Behl, and deputy clerk Jim Verbick, while the clerk’s office was dismissed as a separate defendant.
  • Plaintiffs, represented by Law Forward, seek monetary damages for the deprivation of voting rights, as the Wisconsin Elections Commission and Gov. Tony Evers opposed the city’s legal theory in friend-of-the-court briefs.
  • An independent analysis found the uncounted ballots did not change any election outcomes, and the parties are scheduled to return to court on March 20, 2026.