WASHINGTON, D.C. — A federal judge this afternoon upheld a Wisconsin law that requires absentee voters to complete their ballots in the presence of an adult witness, who must complete a written certificate containing a signature and address.

In a federal lawsuit filed last fall, four individual Wisconsin voters alleged that the state’s witness requirement violates Section 201 of the Voting Rights Act of 1965 (VRA). This lesser known section of the famous federal voting legislation prohibits denying the right to vote on the basis of a citizen’s failure to comply with a “test or device.” 

Under the law, tests or devices include the “requirement that a person as a prerequisite for voting…prove his qualifications by the voucher of registered voters or members of any other class.” Section 201’s ban on “tests or devices” was codified in the original 1965 VRA to outlaw a discriminatory post-Civil War voting practice in which prospective voters would need a “supporting witness” to affirm their qualifications. 

In addition to their VRA claim, the voters argued that the witness requirement contravened the Materiality Provision of the Civil Rights Act, which protects against disenfranchisement on the basis of trivial errors that are immaterial to a voter’s eligibility. The lawsuit pointed to the fact that during the 2022 midterm elections alone, over 2,200 absentee ballots were rejected due to witness certificate issues, such as a missing witness zip code. 

In today’s ruling, Obama-appointed Judge James D. Peterson rejected both of the plaintiffs’ arguments. As for the voters’ VRA claim, Peterson wrote: “The bottom line is that the only reasonable interpretation of [Wisconsin law] requires a witness to certify that the voter prepared the ballot correctly; it does not require the witness to certify the voter’s qualifications.” 

In terms of the voters’ Materiality Provision arguments, Peterson concluded that the “Provision does not apply to the witness requirement because it does not relate to “any application, registration, or other act requisite to voting.” The court relied heavily on a recent decision from the 3rd U.S. Circuit Court of Appeals in which a three-judge panel held that the rejection of mail-in ballots with an incorrect or missing date did not violate the Materiality Provision. 

According to both Peterson and the 3rd Circuit’s reasoning, the Materiality Provision only applies to determinations regarding whether a person is qualified to vote. “The witness requirement is not a process for determining voter qualifications, so the Materiality Provision simply does not apply to it,” the opinion reads. 

As a result of today’s ruling, Wisconsin’s absentee voters must continue to fill out their ballots in the presence of a witness, who is required to complete a signed certificate.

Meanwhile, litigation is ongoing in two state-level lawsuits concerning what components of a witness address are sufficient to have an absentee ballot counted.

In a set of January rulings, a Wisconsin judge held that any witness address information on the ballot certificate that is enough to identify a location where a witness can be reached is adequate. The judge also ruled that the rejection of absentee ballots due to certain witness address errors violates the Civil Right Act’s Materiality Provision. Wisconsin’s Republican-controlled Legislature appealed the rulings, which are currently being litigated in the Wisconsin Court of Appeals. 

According to Democracy Docket’s database, there are five ongoing lawsuits surrounding absentee voting in Wisconsin. Earlier this year, voting rights groups filed a legal challenge to Minnesota’s witness requirement, which is currently proceeding in a Minnesota trial court.  

Read the opinion here.

Learn more about the case here.