Liebert, Susan et al v. Wisconsin Elections Commission et al
Filing
102
ORDER granting 58 Motion for Summary Judgment, 64 Motion for Summary Judgment OR, IN THE ALTERNATIVE, TO STAY, 101 Motion for Leave to File Response to Legislature's Notice of Supplemental Authority; denying 63 Motion for Summary Judgment. Signed by District Judge James D. Peterson on 5/9/2024. (rks)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
SUSAN LIEBERT, ANNA HAAS, ANNA POI, and
ANASTASIA FERIN KNIGHT,
Plaintiffs,
v.
DON M. MILLIS, ROBERT F. SPINDELL,
MARGE BOSTELMANN, ANN S. JACOBS,
MARK L. THOMSEN, JOSEPH J. CZARNEZKI,
MEAGAN WOLFE, MICHELLE LUEDTKE,
MARIBETH WITZEL-BEHL, LORENA RAE
STOTTLER, and WISCONSIN STATE
LEGISLATURE,
OPINION and ORDER
23-cv-672-jdp
Defendants.
For more than a century, Wisconsin has allowed voting by absentee ballot in some form.
In the beginning, absentee voting was relatively restricted: citizens did not qualify unless they
were going to be outside their county “in the course of [their] business” on election day, and
the voter was required to prepare the ballot in front of a witness who was authorized to
administer oaths. Wis. Stat. §§ 11.54 and 11.58 (1915). Over the years, Wisconsin has
expanded absentee voting to more groups, first to people who were ill or disabled, Wis. Stat.
§ 11.54 (1957), and then, in 2000, to virtually any qualified voter who did not want to vote
in person, 1999 Wis. Act 182. Throughout this time, the requirement to have a witness has
remained, but now the witness can be any adult U.S. citizen.
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. 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. Plaintiffs’ primary theory is that the
witness requirement violates the Voting Rights Act because it requires the witness to “vouch”
for the absentee voter’s qualifications. Alternatively, plaintiffs contend that the requirement
violates the Civil Rights Act because it is not “material” to determining the voter’s
qualifications. Plaintiffs are suing individuals responsible for enforcing the witness
requirement, including the members of the Wisconsin Election Commission, the commission’s
administrator, and three municipal clerks. The Wisconsin State Legislature has intervened as
a defendant.
Three motions for summary judgment are before the court, one filed by plaintiffs,
Dkt. 63, one filed by the commissioners, Dkt. 58, and one filed by the legislature, Dkt. 64.1
The municipal clerks neither filed their own motions for summary judgment nor took a position
on the other parties’ motions.
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. 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. 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.
Both of plaintiffs’ novel claims represent attempts to apply federal voting rights law
beyond its proper scope. As for plaintiffs’ claim under the Voting Rights Act, it is based on an
Plaintiffs also move for leave to respond to supplemental authority cited by the legislature.
Dkt. 101. The court will grant that motion and accept the brief attached to it.
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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. 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 plaintiffs’ claim under the Civil Rights Act, the court concludes that the provision
plaintiffs are relying 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. 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.
The court will grant defendants’ motions for summary judgment, deny plaintiffs’
summary judgment motion, and direct the clerk of court to close the case.
BACKGROUND
Under Wisconsin law, “any otherwise qualified elector who for any reason is unable or
unwilling to appear at the polling place in his or her ward or election district” may vote by
absentee ballot. Wis. Stat. § 6.85(1). But state law requires citizens who wish to vote absentee
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to comply with various procedural requirements. One of those requirements is that someone
else must witness the voter preparing the ballot. Wis. Stat. § 6.87(2) and (4)(b)1.
Section 6.87(4)(b)1 describes the process of preparing the ballot. First, the voter marks
the ballot in the presence of the witness but should not show the witness how she voted.
Second, while still in the presence of the witness, the voter folds the ballot, puts it in the
envelope, and seals the envelope. Id. Third, the voter delivers the envelope to the municipal
clerk, either personally or by mail. Id.
Section 6.87(2) describes what the voter and witness must certify on the ballot
envelope. Underneath their certifications, the voters and witnesses must sign their name. Id.
Witnesses must also provide their address. Id.
If an absentee ballot does not meet all these requirements, the clerk may return the
ballot to the voter to correct the defect if there is time to do so. Wis. Stat. § 6.87(9). But if the
defect is not corrected, the ballot cannot be counted. Wis. Stat. § 6.84(2).
All four plaintiffs are registered to vote in Wisconsin and plan to vote by absentee ballot
in the 2024 election. Susan Liebert lives alone and is “largely confined in her home” because
of her “age, health, and disabilities.” Dkt. 94, ¶ 17. This means that she generally must arrange
for someone to visit her at her home to serve as the witness. Plaintiff Anna Haas plans to be
traveling overseas around the time of the November 2024 election, and she will not be traveling
with a U.S. citizen.2 Plaintiff Anna Poi attends college in Minnesota, and she prefers to use
another Wisconsin voter as her witness so that she “will be able to locate and rely on the
The parties dispute whether Wisconsin law allows a voter in Haas’s situation to use a non-U.S.
citizen as a witness, but it is not necessary to resolve that dispute to decide the pending
motions.
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witness if it becomes necessary to cure the certificate.” Id., ¶ 33. Plaintiff Anastasia Ferin Knight
attends graduate school in Illinois. “[M]any” of the people she knows in Illinois are also
graduate students who rely on public transportation, so “arranging a meeting to cast an
absentee ballot is a logistical burden.” Id., ¶ 40.
ANALYSIS
A. Request to stay
Before considering the merits of plaintiffs’ claims, the court must address a threshold
issue raised by the legislature, which is whether the court should stay this case pending
resolution of two other cases that involve different plaintiffs proceeding in state court: Priorities
USA v. Wisconsin Elections Commission, No. 2023CV1900 (Dane Cty. Cir. Ct.) and League of
Women Voters of Wisconsin v. Wisconsin Elections Commission, No. 2022CV2472 (Dane Cty. Cir.
Ct.). In Priorities USA, the plaintiffs are contending that multiple aspects of Wisconsin’s
absentee voting laws—including the witness requirement—violate the Wisconsin Constitution.
Dkt. 74-12. In League of Women Voters, the plaintiffs are contending that the requirement on
the witness to include his or her address on the absentee-ballot envelope violates the Civil
Rights Act. Dkt. 54-1. Plaintiffs and commissioners oppose a stay.
In the order on defendants’ motion to dismiss, the court temporarily stayed the case
because of the possibility that Priorities USA could moot this case or at least provide guidance
in interpreting Wis. Stat. § 6.87 and because of concerns about potential conflicts with League
of Women Voters. Dkt. 56. Based on the new information provided by the parties, the court
concludes that no further stay is warranted.
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As for Priorities USA, recent developments in the case make it unlikely that it will
provide any guidance soon. In late January 2024, the circuit court dismissed a facial challenge
to the witness requirement. Dkt. 74-12.3 In reaching that decision, the circuit court did not
construe the scope of the witness requirement in § 6.87 but instead rested its decision on the
plaintiffs’ failure to allege that all voters are harmed by the requirement. The plaintiffs in
Priorities USA have since filed a notice of appeal and a petition to bypass the court of appeals.
Dkt. 74-14. The Wisconsin Supreme Court granted the petition to bypass, but the court is
limiting its consideration to a different question: whether § 6.87 precludes the use of drop
boxes to return absentee ballots. Dkt. 93-1. This means that it is highly unlikely that the
Wisconsin courts will resolve plaintiffs’ state constitutional challenge to the witness
requirement before the 2024 election.
As for League of Women Voters, the court is persuaded that there is no significant risk of
conflict or confusion regardless of how this court rules. The state circuit court concluded that
the Civil Rights Act prohibited election officials from requiring witnesses to include their
address on an absentee ballot envelope. Dkt. 74-9. The claim in this case is a broader challenge
to the witness requirement as a whole. So even if this court concludes that the witness
requirement is not barred by the Civil Rights Act, it does not affect the state court’s order.
Plaintiffs and the commissioners agree that the state court’s order invalidating the address
requirement remains enforceable regardless of what this court rules. Dkt. 82, at 23 and Dkt. 96,
at 28. This court agrees with that view. The legislature says that clerks and voters will be
The circuit court denied a motion to dismiss a claim challenging the witness requirement as
applied to voters who live alone. Dkt. 74-12, at 10–11. But plaintiffs later voluntarily dismissed
that claim. Dkt. 74-13.
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confused if this court enters an order that conflicts with the state court’s order, but the
legislature does not explain why. The two cases address different claims, so both orders can be
enforced without conflict.
The court will deny the legislature’s request for a stay and proceed to the merits.
B. Voting Rights Act of 1965
The court begins with the text of the relevant portion of the Voting Rights Act:
(a) No citizen shall be denied, because of his failure to comply
with any test or device, the right to vote in any Federal, State, or
local election conducted in any State or political subdivision of a
State.
(b) As used in this section, the term “test or device” means any
requirement that a person as a prerequisite for voting or
registration for voting . . . prove his qualifications by the voucher
of registered voters or members of any other class.
Plaintiffs’ theory on this claim is that the witness requirement is invalid because it requires the
witness to “vouch” for the voter’s “qualifications” by requiring the witness to certify that the
voter is entitled to vote.
The parties dispute four issues about this claim: (1) whether it applies only to
“discriminatory” regulations; (2) whether the witness requirement in § 6.87(2) and
§ 6.87(4)(b)1 is “a prerequisite” to voting when voters may avoid the requirement by voting in
person; (3) whether the witness requirement requires the witness to “vouch[]” for the voter’s
“qualifications”; and (4) whether the witness requirement requires the witness to be a
“member[] of a . . . class.” The court concludes that the witness requirement does not require
the witness to vouch for the voter’s “qualifications” within the meaning of the Voting Rights
Act, so it is not necessary to decide the other disputed issues.
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The parties agree that the word “qualifications” in the Voting Rights Act is referring to
eligibility to vote. In Wisconsin, voters are eligible if they are at least 18 years old, a resident
of the ward where they are voting, a U.S. citizen, competent, and a nonfelon. See Wis. Stat.
§ 6.02 and § 6.03. The parties disagree about the proper interpretation of § 6.87, namely,
whether it requires a witness to certify that the voter meets any of those eligibility
requirements.4
The key dispute is over the interpretation of the portion of § 6.87(2) that describes
what the witness must certify. The statute first sets forth in two sentences what the voter must
certify on the ballot envelope. The first sentence requires the voter to certify that he or she
meets the requirements for voting generally and for voting absentee in Wisconsin:
I, . . . , certify . . . that I am a resident of the [. . . ward of the]
(town)(village) of . . ., or of the . . . aldermanic district in the city
of . . . , residing at . . . in said city, the county of . . . , state of
Wisconsin, and am entitled to vote in the (ward)(election district)
at the election to be held on . . . ; that I am not voting at any other
location in this election; that I am unable or unwilling to appear
at the polling place in the (ward)(election district) on election day
or have changed my residence within the state from one ward or
election district to another later than 28 days before the election.
Wis. Stat. § 6.87(2). The court will refer to this sentence as the first voter certification.
The second sentence requires the voter to certify that he or she followed the process for
preparing the absentee ballot:
I certify that I exhibited the enclosed ballot unmarked to the
witness, that I then in (his)(her) presence and in the presence of
no other person marked the ballot and enclosed and sealed the
same in this envelope in such a manner that no one but myself
The commissioners also contend that that the witness’s certification is not “vouching” within
the meaning of the Voting Rights Act, regardless of how the word “qualifications” is construed.
Dkt. 59, at 27. The court’s construction of the scope of § 6.87 renders that argument moot.
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and any person rendering assistance under s. 6.87(5), Wis. Stats.,
if I requested assistance, could know how I voted.
Id. The court will refer to this sentence as the second voter certification.
Immediately following the paragraph describing the two certifications of the voter,
§ 6.87(2) sets forth what the witness must certify:
I, the undersigned witness, subject to [criminal] penalties . . . for
false statements, certify that I am an adult U.S. citizen and that
the above statements are true and the voting procedure was
executed as there stated. I am not a candidate for any office on
the enclosed ballot (except in the case of an incumbent municipal
clerk). I did not solicit or advise the elector to vote for or against
any candidate or measure.5
The court will refer to this paragraph as the witness certification.
The dispute is over the phrase “the above statements” in the first sentence of the voter
certification. Plaintiffs say that the phrase refers to all the above statements in § 6.87(2), that
is, both the first and second voter certifications. Defendants contend that the phrase refers
only to the directly above statements, that is, only the second votrer certification describing the
process of preparing the ballot.
If defendants are correct, there would be no violation of the Voting Rights Act. As other
courts have held, a witness does not vouch for a voter’s qualifications by simply confirming
with a signature what he or she observed. See Thomas v. Andino, 613 F. Supp. 3d 926, 961
(D.S.C. 2020) (“The Witness Requirement is not a ‘test or device’ as defined under Section
201 because the requirement does not mandate the witness to ‘vouch’ or ‘prove’ that the voter
is qualified to vote, but instead is simply required to witness the oath taken by the voter.”);
If the voter is in the military or is living overseas, the witness does not have to be a U.S.
citizen. Wis. Stat. § 6.87(2).
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People First of Alabama v. Merrill, 467 F. Supp.3d 1179, 1225 (N.D. Ala. 2020) (“The witnesses’
signature indicates only that they observed the voter sign the affidavit. As such, the witnesses
do not vouch for the voter's ‘qualifications.’”) (internal quotation marks omitted)). Plaintiffs
do not challenge that view. Rather, they contend that Thomas and Merrill are inapposite because
Wisconsin law requires witnesses to certify more than just what they observed; they must also
certify everything that is in the voter’s first certification, including that the voter is entitled to
vote, so witnesses are vouching for the voter’s qualifications.
The rules for statutory construction under Wisconsin law are consistent with the rules
under federal law. The court begins with the language of the statute, but the court does not
review words and phrases in isolation. State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI
58, ¶¶ 45–46, 271 Wis. 2d 633, 681 N.W.2d 110 (2004). Rather, the court must view the
words in context, including the surrounding language, the structure of the statute, and any
purpose of the statute that is ascertainable from the text itself. Id., ¶¶ 46–49. The court must
also interpret the statute to avoid absurd or unreasonable results. Id., ¶ 46.
The phrase “the above statements” is ambiguous in isolation. The statute does not say
“all of the above statements,” nor does it say “the statements directly above,” and it does not
otherwise specify which of the above statements the witness must certify. So the court must
look to other tools of statutory construction for guidance.
Normally, the court would begin by searching for other textual clues in the statute. But
in this case, the most obvious problem with plaintiffs’ interpretation is that it simply does not
make any sense.
Under plaintiffs’ interpretation, every witness would have to determine the voter’s age,
residence, citizenship, criminal history, whether the voter is unable or unwilling to vote in
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person, whether the voter has voted at another location or is planning to do so, whether the
voter is capable of understanding the objective of the voting process, whether the voter is under
a guardianship, and, if so, whether a court has determined that the voter is competent. See Wis.
Stat. §§ 6.02 and 6.03. Many witnesses would be unable to independently verify much of the
required information. The statute allows any adult U.S. citizen to serve as a witness, suggesting
that a wide variety of people should be able to do the job. But only someone with intimate and
extensive knowledge of the voter would know his or her criminal history or whether he or she
is under a guardianship. And even a close friend or relative would not be able to certify whether
the voter has voted at another location or is planning to do so. The witness could ask the voter,
but that would defeat the purpose of requiring a certification by another person.
It makes no sense to interpret § 6.87 in a way that would make compliance virtually
impossible. 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.
Plaintiffs cite no instances of any witness being penalized for failing to confirm a voter’s
qualifications, and they do 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. Dkt. 99, ¶ 26.
The absurd results to which plaintiffs’ interpretation would lead are reason enough to
reject that interpretation. But the text, purpose, and history of § 6.87 also support an
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interpretation that a witness is required to certify only the statements about the process of
preparing the ballot.
Text. There are three textual clues. First, the ordinary meaning of a “witness” denotes
someone who is relying on personal observations.6 That is consistent with an interpretation of
§ 6.87 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, § 6.87(2) includes two separate sentences, each with its own “I certify” clause,
identifying what the voter must certify. As already discussed, the first sentence is about the
voter’s qualifications; the second sentence is about preparing the ballot. 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.
Third, § 6.87(2) 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. 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. Dkt. 68, at 18 (citing State v.
Matasek, 2014 WI 27, ¶ 18, 353 Wis. 2d 601, 846 N.W.2d).
Merriam-Webster, “witness,” available at https://www.merriam-webster.com/dictionary/
witness (defining “witness” as “one who has personal knowledge of something”).
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But the canon against surplusage only goes so far. “[D]rafters of legislation often
intentionally err on the side of redundancy as a precautionary measure.” Schutte v. Ciox Health,
LLC, 28 F.4th 850, 862–63 (7th Cir. 2022). The Court of Appeals for the Seventh Circuit,
citing Justice Scalia, has referred to this as the “belt-and-suspenders approach.” Gadelhak v.
AT&T Servs., Inc., 950 F.3d 458, 465 (7th Cir. 2020) (quoting Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 176–77 (2012)). The Wisconsin
Supreme Court recognizes the limit as well: “[S]ometimes legislatures do create surplusage and
redundancies of language, and therefore the canon against surplusage is not absolute.”
Milwaukee District Council 48 v. Milwaukee Cnty., 2019 WI 24, ¶ n.10, 385 Wis. 2d 748, 924
N.W.2d 153.
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. 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, as plaintiffs suggest, 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.”
Purpose. 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
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elector.” Wis. Stat. § 6.84(1). 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.
Plaintiffs identify 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. See Wis. Stat. § 6.96(ar). As already
discussed, the witness would not be in a better position than the clerk to make that
determination.
History. The legislature enacted the current version of the witness requirement in
2000, see 1999 Wis. Act 182, but the statute goes back much further. 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.” See 1965 Wis. Act. 666.
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. See, e.g., Wis. Stat. § 11.59 (1915). 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. See Wis. Stat. § 11.58
(1915). Only the voter certified that he was entitled to vote. Id.
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.
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Witnesses were still serving the same purpose: to verify that the voter followed the required
procedure and was not being unduly influenced.
The bottom line is that the only reasonable interpretation of § 6.87(2) requires a witness
to certify that the voter prepared the ballot correctly; it does not require the witness to certify
the voter’s qualifications. Plaintiffs’ arguments to the contrary would lead to absurd results,
and they are inconsistent with the text, purpose, and history of § 6.87(2). The court will grant
summary judgment to defendants on plaintiffs’ claim under the Voting Rights Act.7
C. Civil Rights Act
Plaintiffs’ other claim arises under the Civil Rights Act of 1964. Plaintiffs rely on the
following provision:
(2) No person acting under color of law shall . . .
(B) deny the right of any individual to vote in any election
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.
52 U.S.C. § 10101(a)(2)(B). The parties and other courts refer to this as the Materiality
Provision, so this court will do the same.
As already noted, the municipal clerks have not taken a position on any of the issues raised
in the parties’ summary judgment motions. But even when a party does not move for summary
judgment on a particular ground, the district court may grant summary judgment sua sponte
to that defendant if: (1) the court is granting summary judgment to another defendant on that
ground: (2) the ground would apply equally to the nonmoving defendant; and (3) the plaintiffs
had an adequate opportunity to address the ground. Judson Atkinson Candies, Inc. v. LatiniHohberger Dhimantec, 529 F.3d 371, 384–85 (7th Cir. 2008). All of those requirements are met
here, and no party contends otherwise, so the court will grant summary judgment to the
municipal clerks as well.
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Plaintiffs’ theory on this claim is based on the following premises: (1) failing to sign the
witness certification as required by § 6.87 results in an “error or omission” on the
absentee-ballot envelope; (2) the absentee-ballot envelope is a “record or paper relating to any
application, registration, or other act requisite to voting”; (3) the witness requirement is not
“material in determining whether such individual is qualified under State law to vote”; (4) if
the witness does not sign the certification, the vote cannot be counted, which is a “den[ial] [of]
the right of any individual to vote.” One or both sets of defendants dispute each of these
premises.
The court will resolve issues (2) and (3) in defendants’ favor. Specifically, the court
concludes that the witness requirement does not relate to “any application, registration, or
other act requisite to voting,” and, even if it did, it is “material” in determining whether a voter
is qualified under state law. So the witness requirement does not violate the Materiality
Provision, and defendants are entitled to summary judgment.8 That makes it unnecessary to
consider issues (1) and (4).
1. Any application, registration, or other act requisite to voting
The parties dispute both procedural and substantive issues on this element of the claim.
On procedure, the parties dispute whether the judgment in League of Women Voters issue bars
defendants from relitigating this issue. On substance, the parties take different views on the
scope of the Materiality Provision. The legislature contends that provision applies only to
Neither the commissioners nor the municipal clerks took a position on whether that witness
requirement relates to “any application, registration, or other act requisite to voting.” But the
court can grant summary judgment to the commissioners and the clerks on the same ground
that the court is granting summary judgment to the legislature. See Judson Atkinson Candies, 529
F.3d at 384–85.
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determinations regarding whether a person is qualified to vote, so it does not apply to the
witness requirement in § 6.87. Plaintiffs’ position regarding the scope of the Materiality
Provision is less clear, but plaintiffs contend that it applies to the witness requirement. As a
matter of statutory interpretation, the question is whether the witness requirement relates to
“any application, registration or other act requisite to voting.” For the reasons explained below,
the court concludes that: (1) the legislature is not barred under the doctrine of issue preclusion
from contending that the Materiality Provision does not apply to the witness requirement; and
(2) the Materiality Provision does not apply to the witness requirement because it does not
relate to “any application, registration, or other act requisite to voting.”
a. Issue preclusion
As already discussed, the plaintiffs in League of Women Voters are contending that the
Materiality Provision preempts the portion of § 6.87 that requires witnesses to write their
address on the ballot envelope. The circuit court agreed with the plaintiffs, and one of its
predicate conclusions was that “[t]he Witness Address Requirement is . . . a ‘record or paper
relating to . . . an act requisite to voting.’” Dkt. 54-1, at 4.
The parties agree that claim preclusion does not apply because plaintiffs in this case are
raising a different claim: they are challenging the witness requirement as a whole, not just the
requirement to provide an address. But plaintiffs contend that issue preclusion regarding this
element of the statute does apply because both the commissioners and the legislature are parties
in League of Women Voters. Under Wisconsin law, issue preclusion generally applies if the
following requirements are satisfied: (1) a factual or legal issue was “actually litigated and
determined” in the previous case; (2) the issue was essential to a valid judgment in the previous
case; (3) it would not be “fundamentally unfair” to apply preclusion under the circumstances.
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Clarke v. Wisconsin Elections Commission, 2023 WI 79, ¶ 44, 410 Wis. 2d 19, 98 N.W.2d 370,
391–92.
The parties dispute whether issue preclusion applies to state defendants such as the
legislature and the commissioners when the plaintiffs in the previous case were not the same.
This is called nonmutual offensive issue preclusion in the case law. See Michelle T. v. Crozier,
173 Wis. 2d 681, 688–89, 495 N.W.2d 327, 330–31 (1993). Both sides rely on Gould v.
Department of Health and Social Services, which appears to be the only Wisconsin case that has
considered the issue. 216 Wis. 2d 356, 366–67, 576 N.W.2d 292, 296–97 (Ct. App. 1998).
Gould was about issue preclusion against state agencies, but all parties assume that Gould’s
holding also applies to entities such as the legislature and individuals such as the commissioners
being sued in their official capacity, so the court will do the same.
Gould adopted the reasoning of United States v. Mendoza, which held that offensive
nonmutual issue preclusion generally was not available against the federal government. 464
U.S. 154 (1984). Gould concluded that the same reasons for not applying issue preclusion to
the federal government applied to the state government as well. Specifically, the court reasoned
that: (1) the state government is more likely than private litigants to litigate the same legal
issue against different parties; (2) legal issues in cases involving the government “often have
many and complex consequences—for the government and for other individuals”; and
(3) applying issue preclusion against the state would require the state to appeal every adverse
decision to prevent preclusion. Gould, 576 N.W.2d at 298.
Plaintiffs point out that the court of appeals did “not decide whether there are any
circumstances that might justify applying the doctrine against a state agency.” Id. But this
appears to be primarily because it was unclear whether Mendoza adopted a categorial rule
18
against nonmutual issue preclusion against the government or allowed for exceptions.9 Gould
stated that the reasons for applying issue preclusion “do not, as a general rule, justify the nonmutual offensive application of the doctrine against the agency.” Id. And the court did not
identify any situations in which it would be appropriate to apply nonmutual issue preclusion
against the state government. This suggests that applying nonmutual issue preclusion against
the government is, at most, the very rare exception to the general rule.
In this case, plaintiffs do not persuasively explain why issue preclusion should apply. As
in Gould, this case involves issues that could be raised repeatedly in the context of challenges
to different statutes, and how those issues are resolved would have important consequences
that extend far beyond the litigants. Plaintiffs do not argue otherwise. Instead, plaintiffs say
that preclusion should apply because the legislature and the commissioners have appealed the
circuit court’s decision in League of Women of Voters, so any concern about putting undue
pressure on defendants to appeal is moot. But even that argument cuts both ways in this case
because the appeal in League of Women Voters is still pending. See Appeal No. 2024AP166. So
the final decision in that case remains up in the air, suggesting that it would be premature to
preclude the legislature from litigating the issue now. See Benjamin v. Coughlin, 905 F.2d 571,
576 (2d Cir. 1990) (concluding that “avoidance of premature estoppel” was one of Mendoza’s
primary concerns and concluding that estoppel was not premature when the state had already
received decisions on the merits from several state courts).
The court will not apply issue preclusion and will proceed to the merits.
After Gould was decided, the Court of Appeals for the Seventh Circuit stated that it was
“likely” that Mendoza “intended to create a uniform rule precluding the use of the doctrine [of
nonmutual issue preclusion] against the government.” Kanter v. C.I.R., 590 F.3d 410, 419–20
(7th Cir. 2009). The Supreme Court has not provided further guidance on the question.
9
19
b. Merits
The Materiality Provision prohibits a state from denying the right to vote for an “error
or omission” on a “record or paper” only if the record or paper relates to “any application,
registration, or other act requisite to voting.” There’s no dispute that an absentee-ballot
envelope is not related to a “registration” or an “application.” The question is whether the
envelope is related to some “other act requisite to voting.” This requires a determination of
whether preparing the envelope is part of “voting” itself or is an act “requisite” to voting. If
preparing the envelope is part of “voting,” the Materiality Provision does not apply; if preparing
the envelope is an “act requisite to voting,” then the provision does apply.
Neither the Supreme Court nor the Court of Appeals for the Seventh Circuit have
considered the scope of the Materiality Provision. A handful of other courts have, and they
have reached different conclusions. Several courts in older decisions concluded with little
discussion that the Materiality Provision applies only to voter registration. See Schwier v. Cox,
340 F.3d 1284, 1294 (11th Cir. 2003); Thrasher v. Illinois Republican Party, No. 12–cv–4071,
2013 WL 442832, at *3 (C.D. Ill. Feb. 5, 2013); Friedman v. Snipes, 345 F. Supp. 2d 1356,
1371 (S.D. Fla. 2004); McKay v. Altobello, No. 96-3458, 1996 WL 635987, at *1 (E.D. La.
Oct. 31,1996). Some treatises likewise state—again with little discussion—that the Materiality
Provision is limited to the registration process. See, e.g., Rodney A. Smolla, Federal Civil Rights
Act § 2:2 (3d ed. 2019); 3 Joseph G. Cook & John L. Sobieski, Jr., Civil Rights Actions ¶ 18.01
(2023). In a recent case, the Third Circuit concluded after a lengthy discussion that the
Materiality Provision applied only to determinations regarding whether a person is qualified to
vote, so a requirement to sign and date an envelope that contains a mail-in ballot falls outside
20
the scope of the provision. Pennsylvania State Conference of NAACP Branches v. Secretary
Commonwealth of Pennsylvania, 97 F.4th 120 (3d Cir. 2024) (Pa. NAACP). 10
Other courts have concluded that the Materiality Provision applies more broadly. In In
re Georgia Senate Bill 202, the court concluded that the Materiality Provision applies to any
“voting-related paperwork.” No. 21-mi-55555, 2023 WL 5334582, at *10 (N.D. Ga. Aug. 18,
2023). In La Unión del Pueblo Entero v. Abbott, the court did not provide a general conclusion
about the scope of the Materiality Provision, but the court held that the provision applies
beyond the registration process and included applications for mail ballots. No. 21-cv-844, —
F. Supp. 3d. — , 2023 WL 8263348, at *18–20 (W.D. Tex. Nov. 29, 2023).
For the reasons explained below, this court concludes that acts “requisite to voting” are
limited to those that are part of a process for determining voter qualifications. The witness
requirement is not a process for determining voter qualifications, so the Materiality Provision
simply does not apply to it.
The court’s analysis will be divided into three sections. First, the court will explain why
the Civil Rights Act’s definition of the word “vote” does not support plaintiffs. Second, the
court will explain why it finds the reasoning of Pennsylvania NAACP to be persuasive. Third,
the court will respond to objections raised by plaintiffs and the dissent in Pennsylvania NAACP.
The Third Circuit had previously invalidated the same state requirements under the
Materiality Provision. Migliori v. Cohen 36 F.4th 153, 157 (3d Cir. 2022). But the Supreme
Court later vacated that decision as moot, Ritter v. Migliori, ––– U.S. ––––, 143 S. Ct. 297
(2022), so it was not binding in Pennsylvania NAACP. Neither Migliori nor Pennsylvania NAACP
are binding on this court, so it comes down to which opinion is more persuasive. The court’s
discussion of the relevant issue in Migliori was limited to a footnote in which the court wrote
that the plain language of the Materiality Provision applies to more than just “registration.”
Migliori, 36 F.4th at 163 n.56. But the court did not explain why the provision extends to
absentee-ballot envelopes, so Migliori is not persuasive. The court will discuss Pennsylvania
NAACP’s reasoning below.
10
21
Definition of “vote.” In arguing that preparing the envelope is an “act requisite to
voting,” plaintiffs rely on the definition of “vote” in the Civil Rights Act, which “includes all
action necessary to make a vote effective including, but not limited to, registration or other
action required by State law prerequisite to voting, casting a ballot, and having such ballot
counted and included in the appropriate totals of votes cast.” 52 U.S.C. § 10101(e). If the
definition of “vote” is broad, plaintiffs say, then Materiality Provision should be construed
broadly too. Cases such as In re Georgia Senate Bill 202 and League of Women Voters relied on the
same reasoning.
The problem with plaintiffs’ argument is that the Materiality Provision does not apply
to a record or paper related to a person’s “vote”; it applies to a record or paper related to an
“act requisite to voting.” Plaintiffs read the word “requisite” out of the statute. Assuming that
“vote” and “voting” are intended to have the same scope, a broad definition of what qualifies
as “voting” implies a narrower definition of what qualifies as an “act requisite to voting.” The
same act cannot be both “voting” and “something necessary for voting” at the same time. See
Ritter v. Migliori, 142 S. Ct. 1824, 1826 n.2 (2022) (Alito, J., dissenting from the denial of a
stay application) (“It is . . . awkward to describe the act of voting as ‘requisite to the act of
voting.’”).
In addressing this issue, plaintiffs say that “applying the Materiality Provision’s
protections to the absentee ballot’s outer envelope does not conflate acts ‘requisite to
voting’ . . . with the ‘act of voting’ itself. The act of voting, in its narrow form, is the act of
marking a ballot; under Wisconsin law, completing the witness certificate is an act ‘requisite’
to having that ballot counted.” Dkt. 101-1, at 4 (citations omitted). Plaintiffs do not attempt
to reconcile this argument with their reliance on the broad definition of “vote.” Regardless, the
22
argument proposes two opposing definitions of “voting” in the same sentence: (1) marking a
ballot; and (2) having that ballot counted. Both definitions are problematic for plaintiffs.
As for the first definition, plaintiffs do not explain what principle of statutory
construction supports a conclusion that “marking a ballot” is part of “voting,” but writing on
an envelope after marking the ballot and enclosing it in the envelope is not part of “voting.”
Marking the ballot occurs before preparing the envelope, so how could preparing the envelope
be “requisite” to marking the ballot?
As for the second definition, if having a ballot counted is all that qualifies as “voting,”
then both marking and ballot and preparing a ballot are “requisite to voting.” If that is the
case, then it means that any mistake on the ballot itself is covered by the Materiality Provision,
which would call into question numerous requirements regarding how a ballot must be marked.
For example, making a mark in the wrong place, marking more than one candidate for the same
office, failing to make any mark, using the wrong type of writing utensil, or even using an
unauthorized ballot could all be considered “errors or omissions” that have nothing to do with
qualifications. Plaintiffs do not contend that the Materiality Provision would prohibit state
officials from rejecting a ballot under those circumstances.
Having said that, it cannot be the case that the acts described in the definition of “vote”
and acts “requisite to voting” are mutually exclusive. This is because the definition of “vote”
includes “registration or other action required by State law prerequisite to voting.” But this
does not change the basic problem that an act cannot be both “voting” and “requisite to
voting,” which raises the question whether the definition of “vote” is intended to have the same
scope as “voting” in the Materiality Provision. If that were the intent, Congress could have
written the statute to say the Materiality Provision applies to any “application, registration, or
23
other act of voting” because “voting” would encompass everything in the definition of “vote,”
including any requisite act.
It might seem surprising that “vote” and “voting” would have a different scope. But it
is less surprising when one considers that the word “vote” itself has different meanings in the
same statute. For example, Congress used the words “vote” and “voting” in the definition of
“vote,” so Congress must have meant the words to mean different things in different contexts.
See Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 595 (2004) (“The presumption that
identical words used in different parts of the same act are intended to have the same
meaning . . . is not rigid and readily yields whenever there is such variation in the connection
in which the words are used as reasonably to warrant the conclusion that they were employed
in different parts of the act with different intent.”). Moreover, the definition of “vote” pairs
“other action required by State law prerequisite to voting” with “registration,” and it
distinguishes those acts from other “action necessary to make a vote effective,” such as “casting
a ballot.” This suggests that an “act requisite to voting” is not simply anything that happens
before a vote is counted, and is something more akin to registration than to casting a ballot.
The bottom line is that the definition of “vote” does not provide the obvious answer to
construing the scope of the Materiality Provision, contrary to plaintiffs’ suggestion. The court
must look to other parts of the statute for further guidance. See Direct Marketing Ass’n v. Brohl,
575 U.S. 1, 12–13 (2015) (courts must construe words and phrases in their statutory context).
This is where Pennsylvania NAACP comes in. The court in that case conducted a thorough
analysis of the text, structure, and history and the Civil Rights Act to explain why the court
believed that the Materiality Provision is limited to determinations of voter qualifications.
24
Pennsylvania NAACP. The Third Circuit pointed to three textual clues to support its
determination that the Materiality Provision does not apply rules about ballot preparation.
First, the Materiality Provision applies when an error or omission is not material “in
determining” whether a person is qualified to vote. That language must “mean something”;
otherwise, Congress could have said that the statute applies when the error or omission is not
material “to” a person’s qualifications to vote. Pa. NAACP, 97 F.4th at 131. By using the words
“in determining,” Congress was expressing its intent that the Materiality Provision applies only
when the state is “determining” whether a person is qualified to vote. The state does not use
ballots (or envelopes for ballots) to determine a voter’s qualifications, so rules about ballot
preparation are outside the scope of the Materiality Provision. Pa. NAACP, 97 F.4th at 131.
Second, the phrase “other act requisite to voting” must be read in context of the list in
which it is included. “Registration” and “application” are both processes for determining voter
qualifications. “Where general words follow specific words in a statutory enumeration, the
general words are construed to embrace only objects similar in nature to those objects
enumerated by the preceding specific words.” Pa. NAACP, 97 F.4th at 131–32 (quoting Circuit
City Stores, Inc. v. Adams, 532 U.S. 105, 114–15 (2001)). It follows that the phrase “other act
requisite to voting” also refers to processes for determining voter qualifications. Id. If Congress
had intended a broader interpretation, it could have written the statute as applying to “any
record or paper relating to an act requisite to voting,” without the reference to “registration”
or “application.” Id. at 138. A broader interpretation of the Materiality Provision reads
“registration” and “application” out of the statute. Id.
Third, surrounding statutory provisions are limited to the process of determining voter
qualifications. The Materiality Provision’s section number is 10101(a)(2)(B). Section
25
10101(a)(2)(A) states that election officials may not use discriminatory standards or practices
“in determining whether any individual is qualified under State law or laws to vote in any
election.” Section 10101(a)(2)(C) restricts the use of literacy tests “as a qualification for voting
in any election.” It is unlikely that Congress would “sandwich” a broad provision governing all
aspects of voting in between two provisions focusing on determining voter qualifications. Pa.
NAACP, 97 F.4th at 131. Section 10101(a)(2)(A) is particularly probative because it uses the
same “in determining” language as the Materiality Provision (§ 10101(a)(2)(B)).11
The Third Circuit also provided three reasons beyond the text for why the court believed
that a narrower interpretation was more reasonable. First, it is consistent with legislative history
suggesting that that the Materiality Provision was intended to prevent interference with
registration. The court cited numerous statements in a legislative report that focused on the
problem of elections officials disqualifying Black voters because of minor mistakes on
registration forms and applications. Pa. NAACP, 97 F.4th at 132–33. There were no examples
of concerns in the report about rejecting ballots or ballot envelopes for being filled out
incorrectly. Id.
Second, the court stated that it would make no sense to tie rules for preparing a ballot
to voter qualifications. This is because “vote-casting rules . . . serve entirely different purposes
than voter-qualification rules.” Id. at 136. Specifically, voter qualifications are about
determining who is entitled to vote; ballot-casting rules are about protecting the integrity of
In contrast, § 10101(a)(1) and § 10101(b) apply more broadly. Section (a)(1) states that a
citizen has the right “to vote” without regard to race; section (b) prohibits threats, intimidation,
and coercion for the purpose of interfering with the right “to vote.” Neither section refers to
the voter’s qualifications or a determination whether the voter is qualified. This is further
evidence that the three subsections in § 10101(a)(2) were grouped together because they each
have a similar scope.
11
26
the voting process, Id. At the time voters are preparing and casting their ballots, they have
already been deemed qualified, so there would be no reason to evaluate their qualifications
again. Id; see also Ritter, 142 S. Ct. at 1825 (Alito, J., dissenting from the denial of the stay
application) (“There is no reason why the requirements that must be met in order to register
(and thus be ‘qualified’) to vote should be the same as the requirements that must be met in
order to cast a ballot that will be counted.”).
Third, a broader interpretation of the Materiality Provision would mean that numerous
rules related to vote casting would be invalid. The court gave examples of signature
requirements and rules that disqualify a ballot when it is impossible to determine voter’s choice.
Pa. NAACP, 97 F.4th at 134–35. A failure to sign a mail-in ballot or failure to properly mark
a ballot is an “error or omission on any record or paper,” and neither mistake is material to
determining a voter’s qualifications, so both types of rules would be invalid under the Civil
Rights Act if the Materiality Provision applied to ballot preparation. Id.
The Third Circuit’s reasoning is persuasive. It explains why the statute’s text, legislative
history, and logic all support an interpretation that the Materiality Provision does not apply to
ballot preparation.
Judge Shwartz dissented from the majority’s holding in Pennsylvania NAACP,
concluding that the Materiality Provision applies to envelopes used for mailing absentee ballots
for the following reasons: (1) the Civil Rights Act defines “vote” broadly; (2) the majority’s
interpretation renders superfluous the phrase “other act requisite to voting”; (3) the word “any”
suggests a broad scope; and (4) a broader interpretation is more consistent with congressional
intent. Pa. NAACP, 97 F.4th at 146–52. Plaintiffs make many of the same arguments, and
27
they also contend that the interpretation adopted by the majority in Pennsylvania NAACP is
simply illogical and makes the Materiality Provision meaningless.
The court has already explained why the broad definition of “vote” is not dispositive,
so it is not necessary to discuss that issue again. But the court will address plaintiffs’ and the
dissent’s other objections below.
Objections to the reasoning in Pennsylvania NAACP. As for the question whether
the majority’s interpretation renders superfluous the phrase “other act requisite to voting,” the
dissent’s position was that the majority limited the Materiality Provision to the registration
process. Some passages from Pennsylvania NAACP could be read that way. 97 F.4th at 128
(distinguishing its holding from a previous case holding that “federal law does apply outside
the voter registration context”). The majority acknowledged that such a reading could render
superfluous the phrase “other act requisite to voting.” Id. at 138. The court’s response to that
was that “[s]ometimes, no matter how we read a statute, there will be redundancies.” Id.
(internal quotation marks omitted). Other courts that have limited the Materiality Provision
to registration simply ignored the surplusage problem. See Schwier, 340 F.3d at 1294; Thrasher,
2013 WL 442832, at *3; Friedman, 345 F. Supp. 2d at 1371; McKay, 1996 WL 635987, at *1.
As already discussed, it is true that the rule against surplusage has limits. Schutte, 28
F.4th at 862–63. But there are two other ways of reading the Materiality Provision that reject
the “all aspects of voting” interpretation proposed by plaintiffs while still giving meaning to
the phrase “other act requisite to voting.” Both possibilities are consistent with points that
plaintiffs raise.
First, plaintiffs say that the Materiality Provision should not be allowed to disqualify
voters for making mistakes simply because a record or paper “was not formally an application
28
or registration form.” Dkt. 101-1, at 3. The court agrees, and that provides one reasonable
understanding of the purpose in adding the phrase “or other act requisite to voting.”
Specifically, it prevents government officials from creating a new voter qualification process
and avoiding the requirements of the Materiality Provision simply by calling the process
something besides “registration” or “application.” Under this view, “other act requisite to
voting” serves as a sort of fail-safe against manipulation by election officials.
Second, plaintiffs say that “the process of determining voter qualifications does not
necessarily end after the prospective voter submits a registration form or ballot application.”
Id. at 4. As an example, plaintiffs point to Wis. Stat. § 6.79(2)(a), which requires poll workers
to review voters’ ID to confirm that voters are who they say they are. Id. Plaintiffs say that a
poll worker is “confirm[ing] the qualifications of in-person voters by examining proof of
identification.” In other words, plaintiffs’ position is that a poll worker checking an ID is
“determining whether such individual is qualified under State law to vote in such election”
within the meaning of the Materiality Provision.
If plaintiffs are correct, that would give meaning to the phrase “other act requisite to
voting.” Checking an ID is not part of a “registration” or “application.” It would also be
consistent with this court’s view: the Materiality Provision applies any time an election official
determines whether a person is qualified under state law to vote. But the court need not decide
for the purpose of this case whether the Materiality Provisions applies to poll workers checking
IDs.12 Plaintiffs’ claim is about the failure to properly prepare a ballot envelope, not the
adequacy of an ID, and plaintiffs do not contend that election officials use the ballot envelope
This court assumed that it did in Common Cause, 574 F. Supp. at 636, because no party raised
the issue.
12
29
to determine whether a voter is qualified. The important point is that the phrase “other act
requisite to voting” is not rendered superfluous simply because the court rejects the broadest
interpretation of the phrase.
As for the use of the word “any,” the Materiality Provision says that it applies to “any
record or paper relating to any application, registration, or other act requisite to voting.” 52
U.S.C. § 10101(a)(2)(B) (emphasis added). The dissent cited the Supreme Court’s statement
that “‘any’ has an expansive meaning, that is, one or some indiscriminately of whatever kind.”
Pa. NAACP, 97 F.4th at 148 (Shwartz, J., dissenting) (quoting U.S. v. Gonzales, 520 U.S. 1, 5
(1997). But even “broad language is not limitless.” Watson v. Philip Morris Companies, Inc., 551
U.S. 142, 147 (2007). Regardless of how broadly “any” is construed, it does not assist in
determining what acts qualify as “voting” and what acts are “requisite to voting.” Rather, the
word suggests only that a record or paper is covered by the Materiality Provision if it is related
to an act requisite to voting.
As for the dissent’s belief that a broader interpretation of the Materiality Provision is
more consistent with congressional intent, the dissent stated that “Congress’s underlying
concern
was
wrongful
disenfranchisement,”
and
“Congress’s
concerns
about
voter
discrimination did not vanish after registration.” Pa. NAACP, 97 F.4th at 149–50 (Shwartz, J.,
dissenting). Plaintiffs make a similar point, citing the statement in Abbott that a narrow
interpretation of the Materiality Provision is inconsistent with “Congress’ broader, welldocumented aim of eradicating all manner of arbitrary and discriminatory denials of the right
to vote” because it could allow denials of the right to vote based on “irrelevant paperwork
errors.” 2023 WL 8263348, at *21.
30
There are two problems with this argument. First, as the majority in Pennsylvania
NAACP pointed out, the dissent failed to cite any legislative history suggesting that Congress
was concerned with mistakes on ballots or ballot envelopes when it passed the Civil Rights Act.
Pa. NAACP, 97 F.4th at 132–33. Rather, that history showed that Congress was concerned
with the registration and application process. Id. Plaintiffs likewise do not cite any evidence of
a broader congressional intent, and they do not contend that Wisconsin’s witness requirement
bears any relation to the sort discriminatory, arbitrary, and technical rules that were the
impetus for the Materiality Provision.
Second, it is true that limiting the Materiality Provision to voter-qualification decisions
means that “paperwork errors” on ballots and ballot envelopes—even errors in providing
information that furthers no important purpose—fall outside the scope of the provision. But
not every statute is intended to cover every problem. The Civil Rights Act of 1964 was one
step in a longer journey. The following year, Congress passed the Voting Rights Act of 1965,
which more broadly prohibits arbitrary and discriminatory restrictions on voting. For example,
the Civil Rights Act prohibits using literacy tests “as a qualification for voting,” 52 U.S.C.
§ 10101(a)(2)(C), and the Voting Rights Act more broadly prohibits the use of “any test or
device” to deny someone’s “right to vote,” 52 U.S.C. § 10501(a). So there is nothing surprising
about Congress intending the Materiality Provision to have a targeted scope.
Plaintiffs raise one other issue. Citing In re Georgia Senate Bill 202, plaintiffs contend
that a narrower interpretation of the Materiality Provision “would essentially render the
provision meaningless” because “a state could impose immaterial voting requirements yet
escape liability each time by arguing that the very immateriality of the requirement takes it
outside the statute’s reach.” 2023 WL 5334582, at *10. That is simply incorrect. Following
31
Pennsylvania NAACP’s logic does not render the Materiality Provision meaningless. Rather, it
leads to a straightforward and sensible rule: when determining whether a person is qualified to
vote, the state may not require the person to provide information that is not related to the
state’s qualifications for voting. That result is consistent with the statutory text as a whole and
the legislative history.
It is plaintiffs’ interpretation that leads to head-scratching results. Neither plaintiffs nor
any of the cases they cite ever explain why rules about preparing or casting a ballot should be
limited to verifying voter qualifications. Plaintiffs do not dispute that voter-qualification rules
and ballot-casting rules are based on different state interests. Nor do plaintiffs dispute that
rules like Wisconsin’s witness requirement for absentee ballots are intended to serve legitimate
and important purposes, such as deterring voter fraud, undue influence, and ballot harvesting.
Instead, plaintiffs say that the state’s legitimate interests are simply irrelevant under the
Materiality Provision because those interests are not related to proving qualifications. Dkt. 78,
at 29. But they identify no reason why Congress would enact a statute that prohibits states
from furthering legitimate interests related to protecting election integrity.
In the absence of a clear textual mandate, the court will not infer that Congress intended
to impose arbitrary restrictions on states. That would be inconsistent with the Supreme Court’s
repeated observations that states have substantial authority over the time, place, and manner
32
of voting and a legitimate interest in preventing and deterring abuses such as fraud.13 If
Congress had intended to displace state authority as significantly as plaintiffs suggest, surely
there would be clearer indication of that in the text or history of the statute.
All of this leads to one conclusion: the Materiality Provision is inartfully drafted, but
the most reasonable reading of it is that it applies only to determinations of a voter’s
qualifications. By plaintiffs’ own assertion, election officials do not use the absentee-ballot
envelope to determine a voter’s qualifications, so rules governing those envelopes such as the
witness requirement fall outside the scope of the Materiality Provision.
The court will grant summary judgment to defendants on plaintiffs’ claim under the
Civil Rights Act.
2. Material in determining whether such individual is qualified
The court has determined that the Materiality Provision does not apply to the witness
requirement, so it is not necessary to consider defendants’ other arguments. But even if
plaintiffs were right that the Materiality Provision does apply to rules governing absentee-ballot
envelopes, the court would conclude that the Materiality Provision does not preempt the
witness requirement because the requirement is “material” to determining whether a voter is
qualified to vote under Wisconsin law.
See, e.g., Brnovich v. Democratic National Committee, 141 S. Ct. 2321, 2338 (2021) (“Casting a
vote, whether by following the directions for using a voting machine or completing a paper
ballot, requires compliance with certain rules.”); Crawford v. Marion Cnty. Election Bd., 553 U.S.
181, 197 (2008) (“The electoral system cannot inspire public confidence if no safeguards exist
to deter or detect fraud.”) (internal quotation marks omitted); Timmons v. Twin Cities Area New
Party, 520 U.S. 351, 358 (1997) (“States may, and inevitably must, enact reasonable
regulations of parties, elections, and ballots to reduce election- and campaign-related
disorder.”).
13
33
The court concluded in its discussion on plaintiffs’ Voting Rights Act claim that
witnesses are not required under § 6.87 to certify a voter’s “qualifications.” Plaintiffs say that
necessarily means that the witness requirement is not material to determining whether a voter
is “qualified” to vote under state law. That’s incorrect, even assuming that the scope of the
term “qualifications” in the Voting Rights Act is the same as the scope of the term “qualified”
in the Civil Rights Act.14 The question whether the witness is certifying a voter’s qualifications
is distinct from the question whether the witness’s certification is “material” to those
qualifications.
As already discussed, one of the purposes of the witness requirement is to deter voters
from submitting fraudulent votes, that is, submitting a vote in the name of someone else. A
witness does not certify whether a person is who they say are, but the presence of the witness
and the requirement to certify what the witness observed may help to deter an unqualified
voter from using the absentee-voting process to submit a fraudulent vote. In that sense, the
witness requirement is a type of safeguard for ensuring that the voter is qualified to vote. That
is enough to show that the witness requirement is “material” to whether the voter is qualified.
Vote.org v. Callanen, 89 F.4th 459, 489 (5th Cir. 2023), is instructive. In that case, the
court considered whether a requirement to use a wet signature on a registration form is material
under the Civil Rights Act. The court concluded that it was because a wet signature helps to
ensure “that those applying to vote are who they say they are.” Id. The court’s reasoning was
In Common Cause, the court concluded that the question whether a voter is “qualified” extends
beyond “substantive qualifications” such as citizenship, residency, and age, to include
requirements such as using an approved form of ID. 574 F. Supp. 3d at 636. Neither side
challenges the holding of Common Cause in this case, and it is unnecessary to reconsider that
decision here because plaintiffs’ claim fails regardless of whether the Civil Rights Act is about
substantive qualifications only.
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that “physically signing the form with the warnings in front of the applicant, threatening
penalties for perjury and stating the needed qualifications, has some prospect of getting the
attention of many applicants and dissuading false statements that an electronic signature,
without these warnings, does not.” Id. at 488–89. The court acknowledged “criticisms of the
effectiveness of an original signature to deter fraud” and that the effect on a registrant of
requiring a wet signature “may not be dramatic.” Id. at 489. But the requirement was material
because it “meaningfully, even if quite imperfectly, corresponds to the substantial State interest
in assuring that those applying to vote are who they say they are.” Id.
It is the same in this case. The witness requirement may not be the most effective way
to ensure that absentee voters are who they say they are. But it is one reasonable method
further that interest in a setting where no election officials or poll workers are present to
monitor the process.
Plaintiffs point out that defendants cite no evidence that election officials ever use the
witness signature to verify a person’s identity, and plaintiffs contend that the Materiality
Provision “is most naturally read to ask whether the information at issue is, in fact, used by an
election official to determine whether a voter is qualified—it does not ask, more abstractly,
whether the information could be relevant to qualifications.” Dkt. 101-1, at 4 n.2 (emphasis in
original). That is a fair point, and it provides further support for the court’s conclusion that
the Materiality Provision is limited to processes in which the state is determining a potential
voter’s qualifications. But if plaintiffs are correct that the Materiality Provision applies to all
aspects of voting, then it follows that information could be material even when it is not actually
used to determine qualifications. Otherwise, the Materiality Provision would prohibit states
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from requiring a voter to provide any information during aspects of the voting process that do
not involve express determinations of qualifications.
If plaintiffs are correct that the Materiality Provision applies to Wisconsin’s witness
requirement, the court concludes that the requirement is material to determining voter
qualifications, and that defendants are entitled to summary judgment on that ground.
CONCLUSION
Plaintiffs say that their circumstances make it more difficult for them to find a witness
when preparing the absentee ballot. But under this court’s interpretation of Wis. Stat. § 6.87,
a witness may be any adult U.S. citizen; plaintiffs are not restricted to witnesses who have
personal knowledge of their voting qualifications. And if a voter will be out of the country on
election day and will not have ready access to another U.S. citizen, that voter may submit an
absentee ballot up to 14 days in advance. Wis. Stat. § 6.86(b). None of the plaintiffs allege
that they have been unable to vote in an election for want of a witness.
Regardless of the challenges plaintiffs face, they have not shown that either the Voting
Rights Act of 1965 or the Civil Rights Act of 1964 prohibits a state from requiring absentee
voters to prepare their ballot in front of a witness. Neither side cites any evidence regarding
the effectiveness of the witness requirement in preventing abuses or the number of citizens who
cannot vote because of the requirement. But regardless of how effective or burdensome the
requirement is, the federal laws at issue in this case simply do not apply to it.
The court reiterates its view that the judgment in this case will have no effect on the
judgments in Priorities USA or League of Women Voters or on the injunction in League of Women
Voters, regardless of how those cases are resolved on appeal. More specifically, this order does
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not preclude the Dane County Circuit Court from enforcing its order invalidating the
requirement in § 6.87 for witnesses to include their address on an absentee-ballot envelope,
nor does this order relieve defendants from complying with the state court’s order.
ORDER
IT IS ORDERED that:
1. Plaintiffs’ motion for leave to respond to the Wisconsin Legislature’s notice of
supplemental authority, Dkt. 101, is GRANTED, and the brief attached to the
motion is accepted.
2. Plaintiffs’ motion for summary judgment, Dkt. 63, is DENIED.
3. The motions for summary judgment filed by the commissioners, Dkt. 58 and the
legislature, Dkt. 64, are GRANTED. On the court’s own motion, summary
judgment is GRANTED to the municipal clerks.
4. The clerk of court is directed to enter judgment in defendants’ favor and close this
case.
Entered May 9, 2024.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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