A Dane County judge heard arguments Monday in a lawsuit that seeks to make electronic absentee ballots available to Wisconsinites with disabilities.

Disability Rights Wisconsin joined the League of Women Voters in suing the Wisconsin Elections Commission two years ago. Those groups argued that voters with disabilities should be allowed to receive, fill out and return an absentee ballot electronically.

Currently, some disabled Wisconsinites have to rely on help from someone else when filling out a paper absentee ballot. People with print disabilities have difficulty reading print because of issues including visual, cognitive or developmental disabilities.

That violates the right to a secret ballot as guaranteed by the Wisconsin Constitution, attorney Jared Grubow argued on behalf of the plaintiffs.

“The print disabled voters of Wisconsin cannot vote on the same terms as all other Wisconsinites,” Grubow said during a hearing Monday before Judge Everett Mitchell. “That is discrimination.”

In June 2024, Mitchell issued a temporary order in the case, which would have required Wisconsin to send ballots over email to voters with print disabilities ahead of the November 2024 election. That ruling would not have allowed voters to return completed ballots electronically. Instead, they would need to be turned in via mail or at a clerk’s office.

Wisconsin’s Republican-controlled Legislature appealed the lower court order, however, an appeals court halted Mitchell’s earlier ruling.

Attorneys for the people suing pointed to the Americans with Disabilities Act and argued that Wisconsin is required to provide electronic absentee voting options as a “reasonable accommodation,” for people who rely on screen readers and other devices.

But Assistant Wisconsin Attorney General Karla Keckhaver argued that voters with print disabilities already have sufficient options, because they can either vote in person using electronic machines or they can fill out a ballot at home with the help of a caregiver or assistant.

“The ADA says nothing about privacy and independence in voting, and it doesn’t give voters with disabilities the right to vote without an assistant,” she said.

She also argued that electronic ballots would pose cyber-security issues and put “undue financial and administrative burdens” on Wisconsin’s elections officials.

“Wisconsin’s absentee voting program is a paper-based system, and that’s not an empty procedural requirement — it’s fundamental to the security of the program,” she said. “Internet voting is not an existing service that Wisconsin already provides to others.”

There are roughly 110,000 eligible Wisconsin voters with print disabilities, who may be affected by a ruling in the case, Grubow said.

One of the plaintiffs in the lawsuit, Donald Natzke, is blind, and unable to read or mark a paper absentee ballot on his own. He can’t rely on his wife for help because she is blind as well.

That problem would be solved if Natzke had access to an electronic absentee ballot, since he would be able to use a speech synthesizer and other accessibility devices to read that ballot and fill it out in the privacy of his own home, the lawsuit argues.

In theory, Natzke could go to a polling place or early in-person voting location to fill out a ballot using an electronic voting machine. But Grubow said that option is “extremely difficult” in practice.

“Any amount of poor weather, be it wind, rain, ice or snow, makes getting to the polling place very dangerous for Mr. Natzke,” Grubow said Monday.

Currently, Wisconsinites may return absentee ballots via mail or by dropping them off at their local clerk’s office. In some communities, ballot drop boxes are also available for returning those ballots. Additionally, Wisconsinites can fill out out absentee ballots in-person at early voting locations.

But, based on a declaration filed by Wisconsin’s elections administrator, Wisconsin clerks are “encouraged” but not “required” to make sure that accessible voting equipment is available at early voting locations, Grubow said.

“(If) there is no accessible voting machine, they’re going to face the same issues,” Grubow said. “Which is why often a lot of these voters are deterred from doing that and prefer to vote absentee at home.”

During Monday’s hearing, attorneys for both sides said they believed the matter can be resolved without a trial. Earlier this year, lawyers representing the state of Wisconsin filed a motion asking for summary judgement.