As the city of Madison fights lawsuits over 193 absentee ballots that were never counted in the 2024 election, officials are leaning on a legal argument that has sparked outrage: that the affected voters were not denied a constitutional right because absentee voting is not guaranteed.
In court filings, the city and its former clerk argue the situation was an error, but not a rights violation — a defense that critics say amounts to excusing disenfranchisement after the fact. “The fact that Plaintiffs’ ballots were not counted is unfortunate,” the filing states. “But it is the result of human error, not malice. And that human error was not a violation of the Plaintiffs’ constitutional right to vote.”
The strategy leans on Wisconsin’s long-debated legal framework treating absentee voting as a “privilege,” and Madison’s position is already fueling concerns that election administrators can mishandle ballots with limited accountability. The legal fight stems from the city’s failure to count 193 absentee ballots during the Nov. 5, 2024 election, prompting a class action lawsuit and a broader debate over how voting errors should be handled when real voters lose their say.
Even some left-leaning election law experts have questioned Madison’s defense. Rick Hasen, a professor at UCLA Law School, said that while states are not required to offer absentee voting, they cannot invalidate voters once that method is available. “Once the state gives someone the opportunity to vote by mail,” he said, “then they can’t — as a matter of federal constitutional law — deprive that person of their vote because they chose a method that the state didn’t have to offer.”
The Madison dispute comes as other election controversies across the country are driving renewed skepticism about the reliability of absentee systems and voter list management.
In Oregon, state officials are moving to remove roughly 800,000 inactive voters from the rolls after lawsuits and mounting pressure to restart routine maintenance — a cleanup critics argue should have happened long ago.
And in Maine, officials investigated after 250 blank absentee ballots intended for the 2024 election were reportedly found inside an Amazon delivery package sent to a private home — an incident that raised fresh questions about ballot distribution security.
Together, the incidents highlight the widening divide between Republicans and Democrats over absentee voting. Republicans, including President Donald Trump, have long argued absentee ballots are vulnerable to mishandling and abuse, while Democrats continue to promote the method as essential for ballot access. In Madison, however, the city’s courtroom defense is likely to deepen concerns that election “mistakes” can still end with voters paying the price.