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….
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…..
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….