Federal judge tosses lawsuit challenging absentee witness signatures

A federal judge has dismissed a lawsuit brought by Democratic activists that sought to void a state law requiring voters to have a witness signature for their absentee ballots.

The Elias Law Group, a progressive-aligned law firm, had represented four Wisconsin voters in the case. They argued that the law violates the Voting Rights Act and the Civil Rights Act, among other things.

State law requires the rejection of any absentee ballot not bearing a witness signature; the plaintiffs said the requirement would hamper their ability to vote in the 2024 election.

“Plaintiffs are four Wisconsin citizens who wish to vote by absentee ballot in the 2024 election, but they do not want to comply with the witness requirement, alleging that it is difficult or inconvenient for them,” federal district judge James Peterson wrote in the decision. “They contend that the requirement violates two federal statutes, the Voting Rights Act of 1965 and the Civil Rights Act of 1964, and they seek to permanently enjoin enforcement of the requirement.”

Specifically, the plaintiffs argued that the witness requirement violates the Voting Rights Act because it requires the witness to “vouch” for the absentee voter’s qualifications, Peterson observed.

“Alternatively, plaintiffs contend that the requirement violates the Civil Rights Act because it is not ‘material’ to determining the voter’s qualifications,” the decision stated. 

Peterson rejected both contentions.

“A witness requirement similar to the one in existence now has been in effect in Wisconsin since the 1960s, around the same time the Voting Rights Act and Civil Rights Act were passed,” he wrote. “Despite the many years the two sets of laws have coexisted, no one before now has contended in a lawsuit that the witness requirement was invalid under federal law.”

The long silence is telling, Peterson opined. 

“It may be debatable whether the witness requirement is needed, but it is one reasonable way for the state to try to deter abuses such as fraud and undue influence in a setting where election officials cannot monitor the preparation of a ballot,” he wrote.

In addition, Peterson continued, both of plaintiffs’ novel claims represent attempts to apply federal voting rights law beyond its proper scope, and, more specifically, the judge said their claim under the Voting Rights Act was based on an unreasonable interpretation of Wisconsin law.

“Plaintiffs say that Wisconsin law requires the witness to do more than ensure that the voter followed the proper procedure in preparing the ballot; rather, the witness must also certify that the voter is eligible to vote,” he wrote. “But that interpretation is inconsistent with the text and purpose of the statute, and it is inconsistent with how the law has been interpreted since it was enacted. Even the plaintiffs themselves do not say in their declarations that they believe they need to find a witness who can certify their qualifications to vote.”

As for the Civil Rights Act claim, Peterson said he concluded that that the provision the plaintiffs relied on applies only in the context of an election official’s determination whether a person is qualified to vote. 

“Election officials do not use the witness certification for that purpose, so it falls outside the purview of the statute,” he wrote. “Plaintiffs’ expansive interpretation of the law would lead to arbitrary restrictions on states’ authority to regulate elections and threaten any requirement on a voter to provide information on a ballot or related document, including a signature requirement or Wisconsin’s requirement that an absentee voter certify that he or she is not voting at another location.”

Plaintiffs have not identified any reason why Congress would have restricted states in the way plaintiffs propose, Peterson concluded in dismissing the lawsuit.

Vague language

Jones dispensed first with claims that the law requires voter witnesses to vouch for a voter’s eligibility, a claim that turned on what all agree is vague language in the statute. Despite that vagueness, Jones concluded that the only reasonable way to read the statute is that witnesses are only required to vouch for what they observe, not for overall voter eligibility.

“It makes no sense to interpret [the statute] in a way that would make compliance virtually impossible,” he wrote. “If plaintiffs’ interpretation were correct, it would mean that countless absentee ballots over decades were invalid because the witness certified that the voter was qualified to vote and met the other requirements in the first voter certification, even though the witness had no basis for such a certification.”

In addition, Jones wrote, the plaintiffs cited no instances of any witness being penalized for failing to confirm a voter’s qualifications, and they did not point to any guidance from the Wisconsin Elections Commission or any municipal clerk instructing witnesses that they need to determine a voter’s eligibility to vote. 

“Rather, the commission’s current instructions for voting absentee explain how to prepare the ballot in front of the witness, but they say nothing about the witness determining voter eligibility,” he wrote. “The absurd results to which plaintiffs interpretation would lead are reason enough to reject that interpretation.”

But there were other reasons, Jones intoned, including three of them in the statute’s text.

“First, the ordinary meaning of a ‘witness’ denotes someone who is relying on personal observations,” he wrote. “That is consistent with an interpretation of [the statute] that requires the witness to certify that the voter properly prepared the ballot. It is not consistent with an interpretation that requires the witness to conduct research or rely on information learned from a third party.”

Second, Jones continued, the statute includes two separate sentences, each with its own ‘I certify” clause, identifying what the voter must certify. 

“[T]he first sentence is about the voter’s qualifications; the second sentence is about preparing the ballot,” he wrote. “If, as plaintiffs contend, the witness certification overlapped completely with both voter certifications, there would have been no need for the legislature to separate those two sentences. The decision to do so suggests an intent to pair the voter’s certification that he or she prepared the ballot properly with the witness’s certification to do the same.”

Finally, Jones observed, the statute requires the witness to certify that “the above statements are true and the voting procedure was executed as there stated.” 

“Plaintiffs contend that the use of the word ‘and’ supports their position,” he wrote. “Specifically, they say that the clause ‘the voting procedure was executed as there stated’ refers to the second certification, so ‘the above statements’ must refer to something more than just the second certification or else the clause ‘the voting procedure was executed as there stated’ would be surplusage.”

But, Jones cautioned, the canon against surplusage only goes so far. 

“The Court of Appeals for the Seventh Circuit, citing Justice Scalia, has referred to this as the ‘belt-and-suspenders approach,’” he wrote. “The Wisconsin Supreme Court recognizes the limit as well.”

Indeed, Jones asserted, the phrase ‘the above statements are true and the voting procedure was executed as there stated’ is best read as an example of the belt-and-suspenders approach.

“As already noted, the phrase ‘the above statements’ is ambiguous in isolation,” he wrote. “The reference to the ‘voting procedure’ provides context for determining what the witness is certifying. After all, ‘the above statements’ refer to what the voter is certifying, and they are written in the first person. Including the clause about ‘the voting procedure’ clarifies that the witness is certifying what the witness observed.”

If the legislature intended the reference to “the above statements” to refer to the voter’s qualifications, one would expect the legislature to make such an onerous requirement explicit rather than obscure it with an ambiguous phrase like “the above statements,” Jones concluded.

What’s it all about, Elias?

And then there was statutory purpose, Jones’s next line of refutation. 

“In its statement of policy for the absentee-voting procedure, the legislature wrote that its purposes were to ‘prevent the potential for fraud or abuse,’ ‘to prevent overzealous solicitation of absent electors,’ and ‘to prevent undue influence on an absent elector,’” he wrote. “A requirement to obtain a witness when preparing the ballot provides one way to deter some of those potential problems. It would be reasonable to conclude that a person would be less likely to commit fraud or put undue pressure on another voter if a witness must be present and also identify herself.”

What’s more, Jones continued, the plaintiffs identified no purpose it would serve to require a witness to certify a voter’s qualifications. 

“Before mailing an absentee ballot to a voter, the municipal clerk must determine that the person requesting the ballot is qualified to vote,” he wrote. “As already discussed, the witness would not be in a better position than the clerk to make that determination.”

History worked against the plaintiffs, too, the judge found.

“The legislature enacted the current version of the witness requirement in 2000, but the statute goes back much further,” he wrote. “Like the current version, the version of the statute enacted in 1967 required voters to make two certifications — one about their qualifications and one about preparing the ballot — and the statute also required two witnesses or someone authorized to administer oaths to certify that ‘the above statements are true and the voting procedure was executed as there stated.’” 

Versions of the absentee-voting law before 1967 also included a witness requirement, but those earlier versions allowed only certain people to be witnesses, usually someone authorized to administer oaths, Jones observed. 

“In those earlier versions of the statute, the witnesses certified only what they observed or personally knew: that the voter followed the required procedure and that the witness did not influence the voter,” he wrote. “Only the voter certified that he was entitled to vote. The wording and organization of the absentee-voting law changed in 1967, but there is no indication that the legislature intended to change what the voter and witness were certifying.”

Witnesses were still serving the same purpose: to verify that the voter followed the required procedure and was not being unduly influenced, Jones found.

“The bottom line is that the only reasonable interpretation of [the statute] requires a witness to certify that the voter prepared the ballot correctly; it does not require the witness to certify the voter’s qualifications,” he wrote. “Plaintiffs’ arguments to the contrary would lead to absurd results, and they are inconsistent with the text, purpose, and history of [the statute].”

In the alternative argument, the plaintiffs made a Civil Rights Act claim based on the law’s requirement that no person be deprived of the right to vote because of an error or omission “on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under state law to vote in such election.”

The plaintiffs argued that the absentee ballot envelope was such a record related to an act requisite to voting and that, if the witness requirement is not “material in determining whether such individual is qualified under State law to vote,” then rejection of a ballot based on a failure of the witness to sign the certification is a denial of the right to vote.

However, the court determined that acts “requisite to voting” are limited to those that are part of a process for determining voter qualifications. Thus, because the absentee envelope is not a record requisite to voting, and the witness requirement is not a process for determining voter qualifications, the civil rights claim does not apply.

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.