Law Forward Could Take Us Backward

Madison takes enough incoming from the hard-right. We don’t need the left to pile on.

I’m referring to the liberal law firm Law Forward’s civil suit against the city and its former clerks over the mishandling of 193 ballots in the November, 2024 election. These were absentee ballots that were misplaced and not counted. They would not have made a difference in any race.

What was really bad about that was the fact that City Clerk Maribeth Witzel-Behl failed to bring it to the attention of the mayor or the city attorney until weeks after she discovered the problem. For that, she and her deputy were forced to resign. The city apologized. There were two separate investigations by the city and the state elections board. New people and new procedures are in place.

This was a bad mistake, but what else do you want the city to do?

Well, Law Forward wants city taxpayers to pay unspecified monetary damages. How much might that be? According to a story in the Wisconsin State Journal, a claim filed in March seeks to value these votes at $175,000 apiece. If they got all of that, it would be just under $34 million. If Law Forward took the customary 30%, that’d be around $11 million. While it seems unlikely that the payout would be nearly as high as that, a cynical person (and I am not a cynical person) might suggest that Law Forward is doing this for two reasons: the money and the exposure for their nonprofit.

As a result of the suit, the former clerks and the city are defending taxpayers in court. Their lawyers are doing what lawyers do, which is to advance every credible legal argument. One of those arguments is that the voters’ constitutional rights (the basis for Law Forward’s suit) could not have been violated because absentee voting is not a right under the constitution. In fact, there’s a 1985 state law saying essentially just that.

Now, you can argue the legal merits of that. I thought the best take on it came from the director of Law Forward’s conservative opposite number, the Wisconsin Institute for Law and Liberty. Rick Esenberg said the argument, “is correct in noting that absentee voting is a privilege and not a right in the sense that the legislature has no obligation to permit it at all. BUT if it does and people choose to cast their ballot in the way specified by law, it doesn’t seem crazy to say that Madison has a constitutional obligation to count their legally cast vote.” So, essentially Esenberg is weighing in on the side of Law Forward on that part of the city’s argument.

Much is being made of this argument because it’s easy to fein virtue signaling outrage about the argument that absentee voting (which is now done by about half of all voters) isn’t a right. In fact, it’s just one argument advanced by two of the three law firms on the side of the defendants. Lawyers for former deputy clerk Jim Verbick did not join in that argument.

But the suit itself is wrong. It’s frivolous because there’s no problem left to fix. This was not a malicious act. The city is taking it seriously. People lost their jobs over this and the problem is being addressed. Moreover, do you really want to establish the precedent that taxpayers are on the line for every error that might be made by a municipal employee? And as for the question of the right to cast an absentee ballot, what happens if a court actually buys the city’s argument? What happens to absentee voting in that case? Law Forward would have stumbled into a suit that blows a hole into something (absentee voting) they strongly support. (But I don’t.)

I know some of the people involved with Law Forward. They’re good people and it’s a good thing that there’s a liberal balance to WILL — although I’m sure WILL is delighted to see them go after the city of Madison. Much of what Law Forward does I like, but this suit is not just unnecessary but dangerous.