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.
Yellow Stripes & Dead Armadillos 
An uncounted ballot is the most inexcusable crimes against an individual in our democracy. Casting votes is all we have, really. Bureaucrats can ignore my phone call and elected officials can choose to vote other than how the majority wants them to. But a vote is the fundmental method for participation in democratic governance. People have died for this right. Not holding the government financially responsible is equivalent to saying, “Oh, it’s okay. Do better next time, ‘kay pal?” like these officials are a youngster letting the ball roll under their glove at a tee ball game. Imagine being a progressive voter in a conservative county and learning that your vote was ignored. Closer to home, when Ben Masel was denied First Amendment rights, he did not take government at its word that a lesson was learned. They changed their policies because they literally couldn’t afford to make the same mistake again. Make them pay. Literally.
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I’d agree if the city wasn’t taking this seriously enough. But all the evidence is to the contrary — the responsible officials are gone, investigations were done, new people and procedures are in place, officials have expressed appreciate levels of concern. And city government will not pay the price in this civil suit. The taxpayers will.
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When Ben Masel was arrested for expressing his free speech rights, did he take the government at its word that it would do better next time? Hell no! He sought punitive damages so officials could literally not afford to arrest him and others again.
Setting a precedent here with punitive damages might get local clerks who perhaps side with Donald Trump to think carefully before they disenfranchise any voters in 2026. Losing a job is serious, but losing tens or hundreds of thousands of dollars gets people’s attention.
We’re not talking about a typo on my water bill here. Votes weren’t counted. It doesn’t get more fundamental than that.
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We differ on Ben, may he rest in peace. I thought the guy was a scam artist, provoking responses so he could sue and settle out of court. To portray him as some sort of courageous activist for civil liberties is just bizarre.
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Perhaps I am less cynical but I think Law Forward is likely using this case to create good legal precedent, not as much for the money.
Seeking monetary damages for the violation of voting rights is not a novel legal theory. In fact, it is the original legal remedy, going back to England, for the violation of someone’s right to vote. You can read more about the legal evolution here. But the short takeaway of that article is that since the 1960s and its landmark voting rights legislation, the U.S. moved away from monetary damages to injunctive relief – preventing the harm before it happened. However, injunctions do not remedy harm that has already occurred, like what occurred in Madison.
Why go back to monetary damages? The article argues that only seeking injunctive relief allows for repeated violation of voting rights because its lack of consequences under-deters future violations. And, in the last 15-20 years, there has been a retrenchment on voting rights and states will often pass a restrictive voting law or policy, lose in court and then retry with an almost identical law. All while people’s right to vote is limited. Additionally, increased election skepticism, including among local officials, heightens the chance voters’ rights will be infringed with no retroactive remedy, because as you note, most often the ballots “would not have made a difference” in the outcome and thus under current law those voters do not have remedy. (See local officials shenanigans: Clerks debunk sheriff’s claim of “zero” ballot drop boxes for voters, see also: The ongoing clash over using ballot drop boxes in Wisconsin )
You ask, “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?” No, not every error. But I do think public officials should be held responsible for the violation of constitutional rights. We hold officials monetarily liable for violations of other rights. Why would we not for a violation of the most foundational right in a democracy? As the paper linked above notes, from the beginning, states have differed on whether a successful claim needed to show intentional wrongdoing or simply the violation of the right. I think mere administrative mistakes probably shouldn’t trigger liability, but the bar shouldn’t be so high to preclude all but the most blatant violation of the right to vote.
With that background, perhaps this is Law Forward’s thinking: Monetary damages will be more impactful in smaller communities. Smaller communities, coincidentally, are currently where we are seeing more election denialism and the potential for future denials of the right to vote. Additionally, by suing Madison, Law Forward is showing that it will hold anyone accountable, even its “friends.” (A nonprofit being nonpartisan?!?) And, optically, a test suit like this is much better against Madison, than say Wausau, where they may receive more blowback for liberal meddling. Finally, regarding Madison’s argument about it being a “privilege,” I believe the case law is pretty clearly against Madison on that and the current Wisconsin Supreme Court is really unlikely to go along with that argument. Either Madison’s attorneys can’t read the law, or they are in cahoots and trying to get a favorable ruling, i.e. striking down their argument. With this city’s current administration, it is a toss up. I don’t think that is a real risk.
(An aside on the large figure, [1] you can ask for whatever you think is right in a complaint, but a jury would decide the appropriate amount, and [2], as a former mayor you would know that you always anchor high at the start of a negotiation.)
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Also, I wrote my first comment on Monday, but it never got posted. While I was writing it, the circuit court ruled against Madison. https://www.votebeat.org/wisconsin/2026/02/09/madison-dane-county-judge-rules-absentee-voting-a-right/
The opinion notes that a monetary claim for negligent denial of a vote has been recognized in Wisconsin since 1866.
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Correction: Deputy clerk Jim Verbick did not resign and is still Madison’s deputy city clerk.
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