Wisconsin voters sue Elections Commission to fix voting problems before the fall

Voters wait in line at Washington High School (Photo by Isiah Holmes)
Voters wait in line at Washington High School (Photo by Isiah Holmes)

Melody McCurtis is one of three Wisconsin voters who say they were deprived of their right to vote in the chaotic April 7 election, and are now suing the Wisconsin Elections Commission in federal court.

The lawsuit, filed Monday morning in the U.S. District Court for the Western District of Wisconsin by the voters, along with two advocacy groups — Disability Rights Wisconsin and Black Leaders Organizing for Communities (BLOC) in Milwaukee — asks the court to “ensure that all Wisconsin voters will be able to freely and safely participate in the upcoming August and November elections.”

The plaintiffs in the suit are asking the court to make safe, socially distanced in-person voting options available in time for the next round of elections, and to require that absentee ballot request forms be sent to all registered voters in Wisconsin in time to enable them to vote successfully. 

Melody McCurtis (photo courtesy of McCurtis)
Melody McCurtis (photo courtesy of McCurtis)

McCurtis, a 26-year-old community organizer in Milwaukee, says she requested an absentee ballot on March 22, but never received it. When her ballot had still not arrived by Election Day, she says she had no choice but to go to the polls — “otherwise I wouldn’t be able to vote.”

McCurtis lives with her mother, who is immune-compromised, and her little brother. “So I wasn’t just risking my health. I was risking their health as well,” she says.

After working to promote civic engagement as deputy director and organizer for the Metcalfe Park Community Bridges, and helping voters in her 98% African American community figure out how to cast their ballots, McCurtis felt she could not miss the election. 

“My mom was so mad but, you know, I was like, ‘I’ve got to do it.’”

When McCurtis arrived at her polling place, Washington High School, around 6:30 pm, there was a line around the block. “I didn’t cast my ballot until 9:09 that night,” she says. “It was pretty intense.”

The National Guard was patrolling the sidewalk, McCurtis says, and she noticed one officer “going up and saying things to different folks.” One woman left the line after she was approached by the officer, McCurtis says. “And then he came to me and was like, ‘You know it’s gonna be a two-hour wait.’ And I was like, ‘I know it’s gonna be a two-hour wait — the line is wrapped around, and I’ve been waiting.’ He’s like, ‘Yeah, you know, just letting you know it’s gonna be a long time.’” 

McCurtis was outraged by what she viewed as the officer’s effort to discourage people from voting. (Long lines developed at all five polling places that remained open in Milwaukee on April 7 — down from the usual 180 — after the Wisconsin Supreme Court overturned Gov. Tony Evers’ effort to postpone in-person voting and local officials scrambled to hold the election in the middle of the COVID-19 pandemic.)

The National Guard officer told McCurtis that he had been on duty since 6 am, she recalls. “I said, ‘A lot of us have tried to vote to avoid coming here, but we’re here.’”  

While several other lawsuits have been filed since the April 7 election, Swenson v. Bostelman, the suit McCurtis is part of, is the only one brought by individual voters who describe suffering specific harm. “And they are asking the court to make sure that doesn’t happen to other people,” says Jeffrey Mandell, an attorney for the plaintiffs in the case.

McCurtis’s co-plaintiffs are Jill Swenson and Maria Nelson, neither of whom was able to vote on April 7. Swenson, who suffers from chronic lung disease, lives alone and was not able to get a witness signature on her absentee ballot. Nelson is undergoing breast cancer treatment and never received her absentee ballot, although she requested it on time. “I followed the rules and yet I was still not able to vote,” she said in a statement. “I felt like it was one more thing cancer took away from me.”

The plaintiffs are seeking remedies that can be implemented by the time voters go to the polls again in August and November.

Mandell emphasizes that the lawsuit is not seeking changes to election law, such as altering voter ID requirements, as a previous lawsuit sought. 

Jeffrey Mandel headshot
Jeffrey A. Mandell

“The court showed a real skepticism about people using COVID-19 as an opportunity to seek relief from parts of voting laws they never liked in the first place,” Mandell says. “This case is about smaller steps within how Wisconsin administers elections, so we can mitigate the effects of the pandemic.”

Asked about the lawsuit in a press briefing on Monday, Evers administration attorney Ryan Nilsestuen agreed that it’s “time to start thinking about the August primary and the November election, and what we can do to make sure that voting is safe and accessible for all.”

“One of the best ways we can do that, just like we saw during the spring election, was to have people be able to vote absentee,” he added. “Clerks under state law can send out an absentee ballot application on their own. There’s funding available that the Wisconsin Election Commission can use in order to cover those expenses.” A sensible option, Nilsestuen said, “is to mail absentee ballot applications to everybody, so there’s time for them to be able to vote safely and securely.” 

Mandell notes that the leaders of the Legislature and the Republican Party intervened in previous lawsuits to oppose the postponement of in-person voting and other changes. 

“They may play a cynical game where they say, ‘Oh, it’s way too far out to make changes now. No one knows what will be happening in the fall.’ But then if we waited until the Fourth of July to file, they would say, ‘Oh, you’re way too late. Changing the rules now would be unfair and prejudicial.’”

A series of lawsuits in the days immediately before the April 7 election led to rule changes and to voter confusion, Mandell notes.

“That’s not the way the best decisions get made. So bringing this lawsuit now gives time for a full and fair process. Hopefully the court takes it seriously.”

An important aspect of the case, say Mandell and the other attorneys for the plaintiffs, is that it is not partisan. 

Protect Democracy, a national nonpartisan nonprofit created after the 2016 election is providing support in the case. 

“We see this as not a partisan issue, but a core democracy issue,” says Rachel Goodman of Protect Democracy. “It’s a real test for democracy in Wisconsin and in the United States as a whole.” 

“Wisconsin needs to get this right so the Wisconsin government functions right,” Goodman adds. “But also so that we can have an election in November we can all have faith in.”

The plaintiffs will ask the court for a preliminary injunction within the next two weeks, Goodman says, “to actually start implementing the relief that we’ve asked for, in the short term …  before this lawsuit has had a chance to play out all the way — because by the time the lawsuit has played out all the way some of the damage will have already been done.”

“I don’t believe that we were valued on April 7, as somebody who lives in Wisconsin and works in Wisconsin” says McCurtis.  

“There were so many hoops that were thrown at us in the last week leading up to the election,” she adds.  “‘We might postpone it,’ then, ‘We’re really having it’, ‘You don’t need a signature [for an absentee ballot] — wait, you do need a signature.’”

McCurtis spent the days leading up to the election trying to help voters in her community sort out conflicting instructions. She is worried about what will happen in the next election, she says. “I know some people that just absolutely couldn’t risk it,” so they didn’t vote. 

“Nobody should have to go through that,”  she adds. “It’s our duty to vote, and we should be able to vote. We don’t have to be disenfranchised the way we were.”

Correction: an earlier version of this piece stated that Protect Democracy was staffed by attorneys from the Barack Obama and George W. Bush administrations. While the group has members from both political parties, are no attorneys from the Bush administration currently on staff. The piece was updated to reflect that on May 21 at 11:05 am.

Ruth Conniff
Ruth Conniff is Editor-in-chief of the Wisconsin Examiner. She formerly served as Editor-in-chief of The Progressive Magazine where she worked for many years from both Madison and Washington, DC. Shortly after Donald Trump took office she moved with her family to Oaxaca, Mexico, and covered U.S./Mexico relations, the migrant caravan, and Mexico’s efforts to grapple with Trump. Conniff is a frequent guest on MSNBC and has appeared on Good Morning America, Democracy Now!, Wisconsin Public Radio, CNN, Fox News and many other radio and television outlets. She has also written for The Nation, The New York Times, The Washington Post, and The Los Angeles Times, among other publications. She graduated from Yale University in 1990, where she ran track and edited the campus magazine The New Journal. She lives in Madison, Wisconsin with her husband and three daughters.