In the November 2024 presidential election 193 absentee ballots in Madison didn’t get counted. They were misplaced and not discovered until it was too late. That was bad enough, but then City Clerk Maribeth Witzel-Behl sat on the information for weeks before admitting the error. 

That delay cost Witzel-Behl her job, but now she’s also being sued by the liberal nonprofit law firm Law Forward. Also being sued are her deputy and the City of Madison itself. Law Forward claims that all of this amounts to a violation of the constitutional rights of the 193 voters who were essentially disenfranchised. 

Among the legal arguments being made by Witzel-Behl’s lawyers — and now also by the city — is that absentee voting is not a right, but a privilege and so there was no violation of a fundamental constitutional right. 

I’m skeptical of that argument. Until several years ago, a voter had to have a good reason to not vote at the polls on Election Day. That reason could have included a disability. So, if the city’s argument holds, it would mean that a person with a disability does not have a constitutional right to vote, since voting by absentee ballot is the only way they can execute their franchise. 

But part of me wants Witzel-Behl and the city to prevail. In part that’s because I think the lawsuit is frivolous. Witzel-Behl has already lost her job. The city is already working on systems to ensure that this doesn’t happen again. Appropriate apologies have been made. It would be different if the city wasn’t admitting its error and taking steps to address it, but that’s not the case here. There’s no reason to think that the city isn’t taking this seriously enough. I just don’t see the point of the suit.

But another reason I hope the defendants will prevail is that I’m for anything that argues that we should go back to an expectation that everyone will vote in person at a polling place on Election Day. (Of course, the old exceptions would apply for people with disabilities, people doing military service, etc.) I understand that that’s not the argument the city is making, but a ruling that agrees with the city’s point on early voting being a right versus a privilege —even while I’m not sure it’s on sound footing — would be, I think, a good thing in the broader context. 

I’ve never liked early voting for several reasons. 

The first reason is that it serves to reinforce our current polarization. The unspoken assumption behind early voting is that you’ve already made up your mind and nothing that happens in the closing weeks of a campaign will matter. Turns out that Donald Trump really did gun down an innocent man in the middle of Fifth Avenue? Doesn’t matter. I’m for Trump. Besides, the guy probably had it coming. When you vote early you’re saying that there’s nothing a candidate can do or say, no policy idea, nothing in their background that comes to light, that will change your mind. That candidate’s color is red or blue and that’s all that matters. It used to be popular for voters to say that they voted for the candidate and not the party. I never hear that anymore. I want to hear it again. 

My second reason is that, especially in presidential elections, there’s an assumption that the top of the ticket is all that matters. Of course, I’m going to vote against Trump, sure. But what about all of the other offices and issues on the ballot? In the case of that November 2024 election, there were two school district referendums on the Madison ballot. At a combined $607 million they were the largest in the district’s history. And they got almost no attention. In a previous post I argued that we need a moderate loyal opposition to raise issues about proposals like these. But even if we had that, chances are that an organization that wanted to raise counter arguments would have limited resources and they’d want to save them to communicate with voters closer to when they make up their minds. Early voting essentially robs them of a couple of weeks to make their case. 

My last argument is admittedly a little cosmic. I see voting as a civic sacrament. And, fitting its importance, Election Day should be what Catholics call a holy day of obligation. It should be a special day. It should require a little effort. It is an experience you should share with your neighbors. By making it easy we’ve also cheapened it. 

Finally, let me address the partisan arguments. 

Republicans charge that early voting, and things that facilitate it like drop boxes, lead to voter fraud. There’s no evidence to support that. Fraud is a non-issue anyway and there’s nothing to suggest that early voting makes an infinitesimal problem any bigger. 

Democrats like early voting because more of their voters take advantage of it. They’re right about that, but their advantage is eroding. The New York Times found that Republicans made big gains in early voting in the last presidential election. If the trend continues the Democratic advantage will soon be wiped out. 

I realize that I’m shouting into the wind here. I don’t see early voting going away. Like red and blue teams and all manner of tribalism, it has become too well established now. And that’s a shame because we need more civic sacraments. 

Dave Cieslewicz is a Madison- and Upper Peninsula-based writer who served as mayor of Madison from 2003 to 2011. You can read more of his work at Yellow Stripes & Dead Armadillos.