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A Dane County judge’s order issued Tuesday will allow some voters with disabilities to receive and fill out their electronic ballot at home in the November election, but the state’s top election official says it will be difficult to get the necessary technology in place by then.
The preliminary injunction, which provides more accessible voting options for Wisconsinites with disabilities, marks an important but incomplete victory for the group of disabled plaintiffs who have sued the state for improved voting access, many of whom were forced to miss elections because of barriers that prevented them from voting in person or made it difficult or virtually impossible to vote absentee in private.
Under the current order, voters can vote electronically in November but must print out a completed ballot and return it in person or by mail, a process they can get assistance with. In the longer term, the lawsuit seeks the option to also return a ballot electronically.
“Today is an exciting, very important day, and we look forward to the next steps,” said Don Natzke, one of the plaintiffs, who is blind. “We’re really excited about the possibility of having absentee voting available by November.”
The plaintiffs in the lawsuit initially sought an injunction allowing electronic voting in the August and November elections, but after Wisconsin Elections Commissioner Megan Wolf said it would be “virtually impossible” to provide the requested relief for both elections, the plaintiffs amended their request to just the November election.
“Under ideal conditions, even the most minor changes would typically require two to three months of work, while larger changes would typically take eight to 12 months to complete,” she said in court papers ahead of the ruling.
State law allows Wisconsin to vote for an extended period, such as in the November federal election, because clerks are required to start sending out absentee ballots 47 days before the election, which in this case is mid-September.
Wolf said just communicating the changes to store associates has been a hurdle in itself.
“Roughly two-thirds of the local clerks responsible for conducting elections are employed part-time,” Wolf said in a court filing. “Communicating significant changes to clerks, making necessary modifications to computer applications, and ensuring consistent implementation across the state will be significant challenges under the tight schedule.”
But the plaintiffs were pleased with the ruling.
“I am so happy about today’s news!” plaintiff Stacey Ellingen said in an email. Ellingen has athetoid cerebral palsy and doesn’t have the fine motor skills to mark a paper ballot herself, so she uses a magnified keyboard and eye-activated communication system to enter her ballot.
“I’m really excited about the idea of being able to mark my ballot on my own in November!” Ellingen said. “I’ll still need help to return my ballot, but I’ll be able to physically mark it on my own! This is great news for people with disabilities.”
The lawsuit comes after years of voting problems
The lawsuit that led to the injunction was filed by four voters with disabilities, who, along with the Wisconsin Disability Rights Association and the League of Women Voters of Wisconsin, sued the Wisconsin Elections Commission in April to allow them to receive and return absentee ballots electronically, just like military and overseas voters in many other states.
The plaintiffs, some of whom are visually impaired, must rely on assistance to cast absentee ballots, which they argue is unconstitutional because the Wisconsin Constitution guarantees a right to a secret ballot.
In their lawsuit, the plaintiffs cited 13 states that allow voters with disabilities to complete and return their absentee ballots electronically in their request for electronic voting. Other states, including Vermont, Michigan, Maryland, and Pennsylvania, allow voters with disabilities to complete their ballots electronically, but in some jurisdictions, voters must print out their ballots and return them by mail, drop box, or in person.
Election security experts, including from federal agencies, have raised concerns about electronic ballot return. They say the technology and systems needed to make the ballot return option secure do not currently exist or have not been tested. They have been much less vocal in their opposition to receiving and marking ballots electronically.
The plaintiffs, in seeking emergency relief, requested only the electronic distribution and marking of ballots for the August and November elections, later changing their request to only the November election. The plaintiffs still seek not only electronic voting but also an electronic return option for all elections, and this aspect of the litigation will continue.
Dane County Circuit Judge Everett Mitchell granted the narrow request on Tuesday after the Wisconsin Elections Commission warned in a court filing that there may not be enough time to implement the changes.
He said the ruling applies to people who cannot read print, including people who have visual or physical disabilities that prevent them from reading or marking a ballot on their own.
Election chief says system difficult to implement
Wolf, Wisconsin’s top elections official, said the elections board, its supporting IT department and clerks will each face significant challenges if they try to implement the plaintiffs’ demands in time for the November election.
That’s especially true, she said, because the changes the plaintiffs proposed and were granted “interface with, and therefore put at risk, many other technical elements,” such as workflows for tracking ballots and their requests, voter registration databases and other processes at the local and state levels.
“If there is a flaw anywhere in the new process, it could cause an outage in any (or all) of the other components,” she said.
Technical changes to the election system go through a six-step process: planning, analysis, design and development, testing, implementation and maintenance, Wolf said. Commission staff needs to complete the first two steps just to get an idea of how long it will take to implement and roll out the electronic voting program, and testing the changes could take anywhere from a few days to a few months, Wolf said.
Wolf said the timeline is being further delayed by limitations set by the Wisconsin Department of Administration’s Enterprise Technology Division, which hosts the elections board’s voting-related systems.
The enterprise technology sector has what are called change freeze periods during which no changes can be made to IT infrastructure, which occur around all statutory holidays and 30 days before any scheduled elections, Wolf said.
Additionally, the elections board’s four-person software development team is focused on maintaining the existing system, not designing a new one, further limiting the chances of building a new system on time, Wolf said.
Wolf noted that the problem ripples from the state to the local level because the commission must first develop and approve electronic voting and then provide training materials to clerks showing them how to implement it.
Wolf said it will take about three months to design and distribute those materials to more than 3,000 local clerks and election staff. Another hurdle is educating clerks on the new procedures, especially those who work part-time, some of whom only work a few hours a week.
In addition to those hurdles, “not all clerks have government-issued email addresses,” Wolf said, “which can make it difficult for voters to verify the authenticity of an email that claims to contain an official ballot.”
“Email inboxes can also be hacked and email addresses can be impersonated in ways that physical analogues cannot,” Wolf continued.
“Any time you say that, I’m struck by the fact that not every clerk has government email,” Mitchell said during Monday’s hearing after Assistant Attorney General Carla Keckhaver raised the point.
“With this tight deadline, it’s very clear that the public interest favors the defendants in this litigation and there is no need to rush these changes into effect,” Keckhaver said.
Natzke, one of the plaintiffs, said he believes the commission can deploy the technology as scheduled.
“Their work is very difficult and challenging, but I think the quality of their work and the way they’re doing it is fantastic,” he said of the committee. “So they have this drive and the will to get it done, and I think it’s realistic that they’ll be successful in making this committee.”
Board of Elections spokeswoman Riley Vetterkind declined to comment on the case and referred Votebeat to court documents explaining the board’s time constraints. It’s unclear whether the board will appeal the order, but Debra Kronmiller, executive director of the League of Women Voters of Wisconsin, said she expects an appeal.
Alexander Shur is a Wisconsin-based reporter for Votebeat. Contact Alexander at [email protected].