Liam Beran
The city of Madison failed to count 193 ballots in the November 2024 election.
Faced with calls to disavow Madison’s novel legal argument that absentee votes do not enjoy a constitutional right to be counted, Madison Mayor Satya-Rhodes Conway has a different suggestion: state legislators should change a 1985 law referring to absentee voting as a “privilege.”
“When a lawyer quotes the law, they're not saying they believe it,” Rhodes-Conway says in an interview on Feb. 6. “They're just saying that's what the law says.”
She adds: “If we have a problem with that statement in law, in state law that is on the books, then we should be going to the Legislature and saying, ‘Change that state law.’ For the record, I do have a problem with it. I do think the Legislature should change that.”
In November 2024, the city of Madison failed to count 193 absentee ballots, even though the then-City Clerk Maribeth Witzel-Behl was made aware of the error in time for it to be at least partially reversed. The uncounted votes did not affect the outcome of any races. The Wisconsin Elections Commission launched an investigation into the mistake, which ultimately found that Witzel-Behl violated five elections laws, and placed several orders upon the city in August to ensure such a mistake does not occur again.
And, in September, progressive law firm Law Forward filed a class action suit on behalf of eight plaintiffs. The firm is seeking $175,000 in damages for each voter disenfranchised.
“The question really in this lawsuit is, when human error happens in a clerk's office, should that office have to pay up to millions of dollars?” says Rhodes-Conway, who adds that the city's longstanding support of absentee voting has "not changed."
A judge has ruled that the city can be held liable for monetary damages. On Feb. 9, Dane County Circuit Court Judge David Conway declined to dismiss the case and ruled that the voters may seek monetary damages.
“The court concludes that Wisconsin law recognizes a cause of action for damages against election officials who negligently deprive citizens of the right to vote,” wrote Conway.
The judge also ruled that “just because the absentee voting process is a privilege does not mean that those who legally utilize it do not exercise their constitutional right to vote.”
In a Feb. 11 Milwaukee Journal Sentinel op-ed, Rhodes-Conway wrote that the city supports Conway's ruling regarding whether absentee votes are constitutionally protected and does not plan to contest it.
The city’s argument has been met with near-universal backlash. Both Gov. Tony Evers and the Wisconsin Elections Commission submitted amicus briefs in opposition. Howard Schweber, a UW-Madison professor emeritus who studies constitutional law, says the city’s argument for dismissing the case was “extraordinarily weak.” Though Wisconsin’s constitution does not explicitly require absentee voting, it does mandate that legally cast votes be counted.
“Once absentee ballots are part of the [statutory voting] system, if the legal requirements are satisfied, there's a constitutional right to have those votes counted on the same basis as others,” says Schweber.
The question of damages, Schweber says, is where “the question gets much more interesting.” Until Monday’s decision, Wisconsin courts had not yet taken up the question of whether plaintiffs may seek damages for disenfranchisement, let alone that done negligently, Schweber says. Law Forward’s choice to seek remuneration, in his view, is meant to deter other municipalities from making similar mistakes in the future.
“The lawyers and the parties who are promoting this lawsuit want to see damages awarded because they're concerned that there needs to be some kind of serious incentive to compel districts to count absentee ballots,” says Schweber. “The context of this is, of course, the coming 2026 midterms and the controversies we've had over the last three election cycles over absentee ballots.”
Precious Ayodabo, the lead plaintiff in the suit, made a similar argument in a Feb. 8 op-ed in The Capital Times: “Frankly, it is not good enough that the city claims it’ll do better next time.”
“No matter what the city says, I believe my vote is worth something,” Ayodabo wrote. “It’s worth enough that I waited for hours in line to cast it. It’s worth enough that politicians spend millions of dollars to receive it. It’s worth enough that people have put their lives on the line and died to protect it.”
But Schweber says, exposing municipalities to financial liability for accidentally not counting ballots — not to mention increased liability insurance costs — may create an incentive for state legislators to “diminish the availability of absentee voting across the board.”
“That could be a perverse incentive, an idea that was intended to help ensure that voting would be fair and easily available to backfire by imposing costs on the system unless they can certify perfect accuracy. And of course, no one can ever certify perfect accuracy,” says Schweber.
Rhodes-Conway concurs that allowing punitive damages for human errors in voting could lead to unforeseen issues.
“Clerks offices are chronically underfunded across the state, and if we have to pay millions of dollars out to lawyers, that's money that won't be invested back into those clerks offices,” says Rhodes-Conway. “That is a huge question and has huge negative implications for our state.”
Liam Beran
City clerk Lydia McComas, left, says 'Making sure people can trust the system has been one of my priorities.'
The city of Madison did adopt, without challenge, a set of orders drafted for it by the Wisconsin Elections Commission. It also implemented some changes that went beyond what the commission ordered, restructured the clerk’s office, and revised training for poll workers. Lydia McComas, who has been city clerk since September, tells Isthmus she has “no concern about our ability to count absentee ballots going forward.”
“Part of the issue with the ballots in 2024 is that it wasn't clear to some inspectors, chief inspectors and election inspectors, where to find the absentee ballots,” says McComas. “For this next election, ballots will only be delivered on election day, and they will be handed from city staff to the chief inspector on election morning. Ballots [we receive] throughout the day will be delivered to the chiefs.”
McComas is the former voter engagement division manager for Hennepin County, Minnesota, and replaced Witzel-Behl. McComas spoke with Isthmus at the Hawthorne Library, where officials on Feb. 7 conducted a public test of election equipment for the upcoming Feb. 17 spring primary. Early absentee voting began on Feb. 3 and will continue until Feb. 15. This is the first election McComas is administering in Wisconsin.
Having begun the job just four months ago, McComas says the error from November has been on her mind.
“In elections, it's important to get it right no matter what. So I don't see that that's really weighing on me any different,” says McComas. “But I think the public trust aspect is, definitely.”
Adds McComas: “I came from Minnesota, where everyone is very excited about voting, and that's the same in Wisconsin. People are really out there and have such high turnout in this state, which is wonderful. Making sure people can trust the system has been one of my priorities, and will continue to be one of my priorities.”
[Editor's note: This article has been corrected to note that absentee voting concludes Feb. 15, not Feb. 17, and to remove a sentence that said the city could not contest Conway's decision.]
