Wisconsin voters with disabilities say their right to vote is at risk

Twenty-seven years ago, Martha Chambers was injured in a horseback riding accident that left her paralyzed from the neck down.

"I use my mouth to do a lot of things — like that mouth stick there, I use for those remotes and that keyboard," she describes while giving a tour of her apartment in Milwaukee, Wis.

Come election time, that's also how she fills out her absentee ballot.

"I have the ability to put a pen stick in my mouth, so I can fill it in and I can sign the ballot and ask a witness to witness my ballot," she says. "They would have to place the ballot in the envelope and actually put it in the mail or take it to the clerk. It would be difficult for me to put a ballot in my mouth and put it in a mailbox; I couldn't reach that mailbox."

But Chambers doesn't know if one of her caregivers will be allowed to return her ballot in the next election because of an ongoing legal battle in Wisconsin.

In January, a Waukesha County judge sided with a conservative legal group in a lawsuit and ruled that ballot drop boxes, which were widely used in the 2020 election, aren't permitted under state law and that voters must return their absentee ballots themselves.

An appeals court temporarily blocked the order for primaries in February, but the ban was in effect for local elections in April. The Wisconsin Supreme Court heard oral arguments on the appeal of the case last month and is expected to make a decision in June — two months before the state's crucial statewide primary elections.

Chambers says regardless of the court's decision, she still plans to vote, but acknowledges others may not.

"It would be illegal and the individual who would assist me would be committing a crime, crazy as that may seem," she says with a sigh. "It's sad because there's a large group of people that just won't do it because they think it's illegal or they're not going to count it, and why bother?"

"I do feel like I'm being punished"

Nationally, the 2020 election saw a big uptick in voters with disabilities casting ballots, as many states took steps to ease access amid the coronavirus pandemic.

The share of people with disabilities who reported having a problem voting dropped from 26.1% in 2012 to 11.4% in 2020, according to a study from Rutgers University.

But now, many voters with disabilities are warily following efforts across the country by Republican-led states to tighten voting rules following the 2020 election, in what conservatives say are steps to shore up election integrity.

In Wisconsin, the crux of the legal case over drop boxes and returning ballots is the interpretation of a portion of state law that details the absentee ballot return process.

"The envelope shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots," the statute reads.

Rick Esenberg, president of the conservative Wisconsin Institute for Law and Liberty, which represented the plaintiffs in the original lawsuit, says the law is explicit.

"I think [the court] ought to read the law as it is written, and say that the law means what it says," he says.

But many voters with disabilities — along with others who live in congregate settings, like those incarcerated or in nursing homes — say a strict interpretation of the law leaves them behind.

"I do feel like I'm being punished just because I'm physically not able to put a ballot in a mailbox," says Stacy Ellingen, a regular absentee voter in Oshkosh.

She has athetoid cerebral palsy and uses an app on her phone that takes her typed text and speaks her words aloud.

"My caregivers help me fill out the ballot and put it in the mailbox. It's literally the only way for me to vote," she says. "If this stands, I wouldn't be able to vote for the people actually making the decisions that affect my life."

One in five adults in Wisconsin has a disability of some kind, according to the Centers for Disease Control and Prevention.

Barbara Beckert of Disability Rights Wisconsin says the voter hotline that the nonprofit runs was flooded with calls after the initial court ruling.

"We heard from people who were concerned, confused and, frankly, shocked by such an extreme restriction," she says.

"Someone showed me a mailing they received from their clerk that had stickers on it that said only the voter can mail or deliver their own ballot," Beckert says. "Most people, contrary to what some believe, want to follow the law. People read that and felt, well, I'm not going to be able to vote."

"That's a legislative call"

Scott Thompson of Law Forward — which represents the appellants in the case, including Disability Rights Wisconsin — said the Waukesha County judge's order conflicts with federal protections for voters with disabilities, like the Americans with Disabilities Act and the Voting Rights Act, which, in part, grants voters with disabilities the right to receive voting assistance from a person of their choosing, other than that person's employer or union representative.

"If you're a municipality, you look at this and you say, 'Well on the one hand, I have the order of a judge in Waukesha County, and on the other hand, I have all these federal laws protecting voters with disabilities,' " Thompson says.

Esenberg says if people think the law is unfair, it's up to state lawmakers to change it.

"The role of the court is not to say, 'Oh, gee, I think that's unreasonable, you should be able to give your ballot to your wife,' or, 'Oh, gee, I think that's unreasonable, you should be able to designate somebody to return your ballot,' " he says. "That's a legislative call."

In his oral arguments before the court and in an interview with NPR, Esenberg referenced a U.S. Postal Service program that he said could help voters with disabilities return their ballots. It involves getting a statement from a doctor attesting that someone is "unable to collect mail from a curb or centralized mailbox."

"If there were people for whom the U.S. Postal Service option didn't work for some reason, and nothing in the record indicates that there is such a person, but let's assume that down the road, we found that there were, then it's possible that that person would be entitled to an exception," Esenberg says.

But disability advocates say that premise is flawed — that there are already many people for whom such a program wouldn't work, and that seeking a legal exemption, which would likely take time and money, is not equitable access to voting.

"This [USPS program] was something that was brought up repeatedly in briefings and even before the Supreme Court of Wisconsin, and frankly, it's an argument that falls completely flat," Thompson says. "[In] that program, they can do door collection or door drop-off, but that doesn't mean that they will physically go into your bedroom and grab the ballot from you to put it in the mail. That program does not exist."

Although Esenberg argued in court that having someone place another's absentee ballot in the mailbox for them does not comply with the law, he suggested in the NPR interview that enforcement isn't likely.

"If a person gives their ballot to a family member and their family member puts it in the mail, nobody is going to know that that happened," he says. "I mean, there are a lot of things like that in the world, like, if a wife fills out a joint tax return and she just scrawls her husband's signature on that. Yes, she shouldn't have done that, but unless she's actually engaged in fraud, nothing is going to happen."

Beckert of Disability Rights Wisconsin says that reasoning is absurd.

"So the message to them is, oh, you can just tell your care worker, 'I'm asking you to commit a crime and mail this ballot for me, but don't worry, you won't be caught,' " she says. "That's unacceptable, and honestly, it's very disturbing in terms of this idea that our laws are supposed to be selectively followed."

"Yes, I vote"

Timothy Carey, who lives in Appleton, has been closely following this legal case.

"I hear the other side saying, 'You can just sue individually to reinstate your right [to vote],' " he says. "With what money? You going to pay for me to do it?"

Carey, 49, says he's voted in every election since he turned 18. He has Duchenne muscular dystrophy and is on a ventilator 24/7.

"I can't mail the ballot, I can't even move my arms," he says. "Everybody has the right to vote, why shouldn't I?"

Carey says the ruling forces voters like him who rely on ballot return assistance to choose between asking someone else to mail their ballot anyway and break the law, or not vote at all.

"It's just sad they didn't think about people with disabilities at all," he says. "People with disabilities matter. Yes, I'm here. Yes, I vote."

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