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Election officials in Madison are already facing a state and city investigation into the series of errors that resulted in nearly 200 absentee ballots not being counted in last fall’s election. Now officials there face a claim for compensation in an unusual case that aims to emphasize the importance of properly counting all ballots, and set a monetary penalty for denying a person their vote.
A liberal election law group called Law Forward served a $34 million claim this month against Madison and Dane County, seeking damages amounting to $175,000 for each Madison voter whose absentee ballot got misplaced. The filing is likely a precursor to a lawsuit, as the group is seeking out other disenfranchised voters to join its case.
“There is going to be a price to pay when you interfere with someone’s right to vote in Wisconsin,” said Scott Thompson, staff counsel for Law Forward.
Cases like this have a history that goes back to the voting rights fights of the late 1800s and 1900s, when officials intentionally sought to bar Black people from voting. But they’re highly unusual today — most voting rights cases seek only to have a challenged right restored, rather than damages — and experts say it’s unlikely that Law Forward’s claim in the Madison case will lead to any damages being paid out.
The threat of a financial cost for errors could add to the pressure on local clerk’s offices, which already deal with the challenges of new laws and court rulings, along with persistent scrutiny from election skeptics and lawmakers. (Madison’s city clerk has been placed on leave while the investigation into her office continues.) Some clerks around the state said they consider the errors in Madison serious, but questioned the move to assign liability.
Melissa Kono, the clerk in the small town of Burnside in western Wisconsin, said that instead of a payout to voters affected by an error, money would be better spent on developing a better system for clerks to manage the volume of absentee ballots, which has surged since the COVID-19 pandemic. The uncounted ballots in Madison were all absentee ballots.
Thompson acknowledged the potential impact of his group’s action on clerks. But he said it serves as a broader response to the steady stream of lawsuits filed by conservative groups since 2020 aimed at preventing officials from counting certain ballots because of the way they’re returned or the information they’re missing. In the context of these lawsuits, he said, it’s important to send a message that there should be a cost for disenfranchising people.
“Elections are about exercising the right to vote,” he said. “They’re not about finding ways to kick people off the voter rolls.”
Legal filing says Madison and Dane County violated constitution
In a statement, Madison spokesperson Dylan Brogan didn’t directly address the Law Forward claim but said every ballot should be counted accurately and that the city is cooperating with ongoing investigations while conducting its own.
Here’s what investigators have said about the case so far: In all, 193 absentee ballots that were sent to two polling places in the city for tabulation on Election Day went missing, and were not counted, even after they were found. For reasons still unknown, the election workers at those polling places never opened the courier bags containing those ballots. Those ballots then went to the city clerk’s office, but workers didn’t open one of the parcels until Nov. 12, and the other one until Dec. 3.
The ballots in the bag opened on Nov. 12 could still have been counted — city and county officials have given conflicting accounts on why they weren’t.
The sum total of the oversights, Law Forward alleges in its claim, resulted in the unconstitutional disenfranchisement of the 193 voters. The group appears to be preparing for a class-action lawsuit and is welcoming the other disenfranchised voters to join the case.
In the claim, the group cites two Wisconsin Supreme Court cases that it says allow it to sue for damages, even if what happened in Madison turns out to be a series of unintentional oversights.
One of those cases was a judgment from 1866, in which the court ruled that government officers can be found liable for their actions in denying Black Wisconsin residents the right to vote, even if those actions are done without malice. The other is a 1916 finding that because a group of voters was entitled to vote, people depriving them of that right can be held liable for their disenfranchisement.
Claims like these typically move to lawsuits if they’re not resolved, and the city and county are unlikely to accept or negotiate the requested amount, likely prompting Law Forward to file suit this summer.
When voters seek monetary damages
Why ask for money on behalf of the voters? Thomson said it’s because there’s nothing else to ask for besides money and a finding of the city’s wrongdoing. It was too late, he said, to give the voters back the right they had been deprived of: the right to vote and have their ballots counted in the November 2024 election.
Thompson said attorney-client privilege prevented him from disclosing how the group arrived at the $175,000 figure for each voter. Wisconsin law currently caps damages against government officials at $50,000. Thompson said a secondary goal of the forthcoming lawsuit is to have a court find that law unconstitutional and allow groups to seek larger damages.
Voter lawsuits seeking monetary damages were never very common, but there were instances in the late 19th and early 20th centuries, typically tied to racial discrimination, said Justin Levitt, an election law professor at Loyola Marymount University and a former deputy assistant attorney general in the Justice Department’s civil rights division.
The most prominent cases of this kind were in Texas, where between the 1920s and 1940s Black voters who were barred from voting in Democratic primaries because of their race sometimes sued for damages in court, Levitt said.
In those cases, Black voters were designed to be left out of the voting process. In Madison, by contrast, it appears at this point that a series of mistakes — not malice or intent — led to these ballots getting lost initially.
But Thompson cautioned against coming to conclusions about why the Madison ballots didn’t ultimately get counted.
“It is too early for anyone, I think, to say with certainty exactly what happened and why it happened here,” he said.
Lawsuits seeking damages against government officials face two significant challenges, said Richard Hasen, director of the Safeguarding Democracy Project at UCLA School of Law: First, courts usually look for something more egregious than negligence, such as malicious intent. Second, he said, a number of legal doctrines usually give government officials a raised level of immunity.
He said he couldn’t think of any cases of this kind, where voters deprived of their right to vote successfully sued election officials for damages, since the 1960s.
Clerks question monetary penalty for errors
If the city accepts the claim or a court does award damages, it could have a financial impact of millions of dollars and would send a signal across the state.
“It’s not normal for this quantity of ballots to go uncounted, and I think everybody recognizes that that’s not normal,” Levitt said. “If this case succeeded, it would substantially increase the stakes of an error like that.”
But Madison’s errors stand out as unusually serious, said Wood County Clerk Trent Miner, a Republican. He said he thinks that Law Forward’s claim proposes too high a penalty, but that it shouldn’t make clerks fear the prospect of penalties for the far less consequential errors that they encounter from time to time.
“Humans run elections, so errors will happen,” he said. “This, I think, pole vaults over a minor error.”
Kono, the Burnside clerk, pointed out that the initial error of not counting the ballots at the polling sites was at the hands of the poll workers at the Madison polling sites who never opened or processed the 193 ballots.
“If you’re relying on unpaid or low-paid, glorified volunteers, essentially, what is the liability?” she said.
Even if the court doesn’t ultimately award monetary damages, the discovery phase of the expected lawsuit — where the two sides must share evidence — could significantly increase transparency around Madison’s ballot-counting errors, Thompson said. This process would likely place additional pressure on Madison and Dane County to fully disclose information beyond what has already emerged from ongoing city and state investigations.
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Alexander at ashur@votebeat.org.
