United States v. Town of Thornapple, Wisconsin

• Court: Court of Appeals for the Seventh Circuit
• Decided: July 25, 2025
• Docket: 24-2931
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 24-2931 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

TOWN OF THORNAPPLE, WISCONSIN, et al., Defendants-Appellants. ____________________

Appeal from the United States District Court for the Western District of Wisconsin. No. 24-cv-664 — James D. Peterson, Chief Judge. ____________________

ARGUED APRIL 14, 2025 — DECIDED JULY 14, 2025 ____________________

Before BRENNAN, ST. EVE, and LEE, Circuit Judges. ST. EVE, Circuit Judge. In June 2023, the Town Board of Thornapple, Wisconsin voted to stop using electronic voting machines in elections. The Town implemented this decision in Wisconsin’s 2024 federal primary elections and required voters to use paper ballots. The United States sued the Town and select Town officials in response, alleging that they failed to make at least one accessible voting system available at the Town’s polling place, in violation of section 301 of the Help 2 No. 24-2931

America Vote Act of 2002 (“HAVA”). See 52 U.S.C. § 21081(a)(3)(A)–(B). The United States also sought, and the district court granted, a preliminary injunction requiring the Town to pro- vide a HAVA-compliant system in the November 2024 federal election. When granting the government’s motion for a pre- liminary injunction, the district court rejected the Town’s ar- guments that its use of paper ballots did not fall within HAVA’s purview and that the government failed to demon- strate a likelihood of irreparable harm. Finding no error in the district court’s analysis of these issues, we affirm. I. Background Congress enacted HAVA in the aftermath of the Novem- ber 2000 presidential election and “its attendant controver- sies.” Fla. State Conf. of NAACP v. Browning, 522 F.3d 1153, 1155 (11th Cir. 2008); see Colon-Marrero v. Velez, 813 F.3d 1, 9 (1st Cir. 2016). Among other aims, Congress sought “to estab- lish minimum election administration standards” for federal elections. Help America Vote Act of 2002, Pub. L. No. 107-252 (codified at 52 U.S.C. §§ 20901 et seq. (2002)). Section 301 of HAVA, titled “Voting Systems Standards,” lays out some of these minimum standards. Id. Pertinent here, each “voting system” used in an election for federal office shall: be accessible for individuals with disabilities, includ- ing nonvisual accessibility for the blind and visually impaired, in a manner that provides the same oppor- tunity for access and participation (including privacy and independence) as for other voters[.] 52 U.S.C. § 21081(a)(3)(A). A “voting system” satisfies this re- quirement by providing “at least one direct recording No. 24-2931 3

electronic voting system or other voting system equipped for individuals with disabilities at each polling place[.]” Id. § 21081(a)(3)(B). The Town of Thornapple, Wisconsin previously satisfied this accessibility requirement by using a Dominion ImageCast Evolution machine. But in June 2023, the Town Board changed course and voted to stop using electronic voting ma- chines and instead use paper ballots. The Town implemented this decision in Wisconsin’s April 2024 and August 2024 fed- eral primary elections, during which voters marked up paper ballots by hand and placed their ballots in a locked box. The Town then hand counted these ballots. Soon after, the United States sued the Town, as well as the Town Clerk and three members of the Town’s Board in their official capacities, for allegedly failing to provide “at least one direct recording electronic voting system or other voting sys- tem equipped for individuals with disabilities” at the Town’s polling place. Id. The government also moved for a prelimi- nary injunction requiring the Town to provide an accessible voting system in the November 5, 2024, general election, among other things. The district court granted the preliminary injunction. It re- jected the Town’s argument that its paper ballots did not qual- ify as a “voting system” under HAVA, relying on the text and structure of section 301. It similarly rejected the Town’s argu- ment that the government failed to demonstrate irreparable harm, finding that individuals with disabilities would be “de- prived of the opportunity to vote independently and pri- vately.” In reaching this latter conclusion, the district court re- lied on testimony from Thornapple’s Chief Election Inspector Suzanne Pinnow who recounted instances where individuals 4 No. 24-2931

with disabilities received assistance in casting their votes. Pinnow also testified that approximately “zero to one” disa- bled voters cast ballots at the Town’s polling place per elec- tion and that these voters had not asked to use a voting ma- chine because they preferred receiving physical assistance from someone. In granting the preliminary injunction, the district court directed the Town to ensure its polling place had a voting sys- tem equipped for individuals with disabilities as required by HAVA during the November 2024 election. The court’s order also imposed several provisions that are ongoing to this day, including provisions prohibiting the Town from enforcing its June 2023 decision to stop using electronic voting machines and requiring that the Town ensure election officers receive appropriate training on implementing HAVA-compliant sys- tems. The Town now appeals the preliminary injunction, invok- ing our appellate jurisdiction under 28 U.S.C. § 1292(a)(1). II. Discussion To secure a preliminary injunction, the government must demonstrate that it is likely to succeed on the merits of its suit, it is likely to suffer irreparable harm in the absence of prelim- inary relief, the balance of equities tips in its favor, and an in- junction is in the public interest. Winter v. Nat. Res. Def. Coun- cil, Inc., 555 U.S. 7, 20 (2008). On appeal, the Town contests only the government’s like- lihood of success on the merits and irreparable harm. We therefore limit our discussion to these requirements, review- ing the district court’s legal conclusions de novo and findings of fact for clear error. Int’l Ass’n of Fire Fighters, Loc. 365 v. City No. 24-2931 5

of East Chicago, 56 F.4th 437, 446 (7th Cir. 2022). A finding of fact is clearly erroneous only when “we cannot avoid or ig- nore a definite and firm conviction that a mistake has been made” after reviewing all the evidence. Id. at 447 (citation modified). A. Likelihood of Success on the Merits HAVA requires that each “voting system” is “accessible for individuals with disabilities,” and then elaborates on how a “voting system” can satisfy this requirement. 52 U.S.C. § 21081(a)(3)(A)–(B). The Town does not argue that its deci- sion to withhold the ImageCast Evolution machine and pro- vide only paper ballots meets HAVA’s accessibility require- ment. It instead argues that it is not subject to these provisions because its use of paper ballots does not constitute a “voting system” to which HAVA’s requirements attach. The govern- ment’s likelihood of success on the merits therefore turns on a narrow question of statutory construction: is the Town’s pa- per ballot voting method a “voting system” under HAVA? As with any question of statutory construction, we begin with the text of the statute. The context in which a statutory phrase appears and the phrase’s place in the overall statutory scheme serve an essential role in our understanding of the text. Loja v. Main St. Acquisition Corp., 906 F.3d 680, 683 (7th Cir. 2018) (citing Sturgeon v. Frost, 577 U.S. 424, 438 (2016)). We follow a “foundational principle of statutory interpreta- tion” that the same term presumptively carries the same meaning throughout a statute. Waukegan Potawatomi Casino, LLC v. City of Waukegan, 128 F.4th 871, 876 (7th Cir. 2025); see also White v. United Airlines, Inc., 987 F.3d 616, 623 (7th Cir. 2021) (presuming “identical words used in different parts of 6 No. 24-2931

the same act are intended to have the same meaning” (citation modified)). A straightforward application of these principles per- suades us that the Town’s use of paper ballots is a “voting system.” Congress referenced “paper ballot voting systems” three times in section 301 when explaining how such a system can satisfy other provisions of HAVA. See 52 U.S.C. § 21081(a)(1)(B), (c)(2). These repeated references to “paper ballot voting systems” tell us that Congress views a munici- pality’s use of paper ballots as a type of voting system in these provisions. See Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 586 U.S. 9, 19 (2018) (“Adjectives modify nouns—they pick out a subset of a category that possesses a certain quality.”). Be- cause we presume that Congress uses a term consistently throughout a statute, Congress’s use of “voting system” within the accessibility provisions should encompass “paper ballot voting systems,” too. The plain text of section 301 there- fore strongly counsels against the Town’s assertion that HAVA does not apply to its use of paper ballots. Section 301’s definition of “voting system” adds support to our conclusion that the Town’s paper balloting method is a voting system. HAVA provides that “the term ‘voting system’ means—” (1) the total combination of mechanical, electrome- chanical, or electronic equipment (including the soft- ware, firmware, and documentation required to pro- gram, control, and support the equipment) that is used— (A) to define ballots; (B) to cast and count votes; No. 24-2931 7

(C) to report or display election results; and (D) to maintain and produce any audit trail infor- mation; and (2) the practices and associated documentation used— (A) to identify system components and versions of such components; (B) to test the system during its development and maintenance; (C) to maintain records of system errors and de- fects; (D) to determine specific system changes to be made to a system after the initial qualification of the system; and (E) to make available any materials to the voter (such as notices, instructions, forms, or paper bal- lots). 52 U.S.C. § 21081(b) (emphasis added). By including “paper ballots” within the definition, Congress once again demon- strated its intent to cover paper balloting. The Town attempts to sidestep this express reference to paper ballots and the references to “paper ballot voting sys- tems” by focusing on an alleged lack of “mechanical, electro- mechanical, or electronic equipment” in its voting method. Under the Town’s reading, a “voting system” requires some form of this equipment because “and” connects subsection (1) about equipment with (2) about practices and associated doc- umentation. 8 No. 24-2931

“And” undoubtedly “connect[s]” specified terms, but how it does so “depend[s] on context.” Pulsifer v. United States, 601 U.S. 124, 133, 151 (2024); see also Navy Fed. Credit Union v. LTD Fin. Servs., LP, 972 F.3d 344, 356 (4th Cir. 2020) (“and alone tells us little of how two items are to be combined”). When an in- troductory phrase applies “independently and equivalently” to all terms that follow, for example, “and” may mean that each term satisfies the phrase in addition to the next, rather than imposing a joint requirement. See Pulsifer, 601 U.S. at 133–34. We can read the introductory phrase here, “a voting system means,” to do just that. That is, “a voting system means” (1) the total combination of certain equipment used throughout the voting process, and it also means (2) practices and associated documentation. The practices and associated documentation, which expressly include paper ballots, con- stitute a voting system with or without equipment. Indeed, this interpretation is the only one that “produces a substantive effect that is compatible with the rest of the law.” United Sav. Ass’n of Tex. v. Timbers of Inwood Forest As- socs., Ltd., 484 U.S. 365, 371 (1988); see also CFPB v. Townstone Fin., Inc., 107 F.4th 768, 776 (7th Cir. 2024) (declining to inter- pret a term in a way that “frustrates the obvious statutorily articulated purpose of the statute”). Consider the Town’s in- terpretation. The Town suggests that its use of paper ballots would constitute a “voting system” if it used mechanical, electromechanical, or electronic equipment to count ballots instead of hand counting them. During oral argument, the Town also indicated that using a printer to create ballots No. 24-2931 9

would satisfy its perceived equipment requirement. 1 The ac- cessibility provisions at issue, however, concern an individ- ual’s “access and participation (including privacy and inde- pendence)” when casting his or her vote. Given Congress’s focus on the rights of individuals with disabilities when cast- ing ballots, an interpretation of “voting system” that guaran- tees these rights only when certain equipment is used to pre- pare or count ballots makes little sense. The broad nature of HAVA’s statutory scheme also refutes the Town’s interpretation. The preamble of HAVA states that it seeks “to establish minimum election administration stand- ards,” and Title III, which encompasses section 301, sets forth “uniform … requirements.” Pub. L. No. 107-252. To achieve these aims, Congress set forth a broad definition of “voting system” that captures a wide array of equipment, practices, and documentation used before, during, and after the voting process. See 52 U.S.C. § 21081(b) (including equipment used to display results and produce audit trails, along with prac- tices used to test a voting system during development, within the definition of “voting system”). The Town asserts that such a broad reading renders the definition superfluous, but it fails to harmonize its restrictive reading with the aim of establish- ing minimum and uniform standards in federal elections. We

1 The record does not reflect whether the Town used a printer to create

its ballots, although we are hard-pressed to imagine that the Town hand wrote each ballot. 10 No. 24-2931

decline to read in a loophole for hand counted paper ballots in the face of clear textual indications to the contrary. 2 In light of Congress’s express reference to “paper ballot voting systems,” the broad definition of “voting system” that mentions paper ballots, and the statutory scheme, we con- clude that the Town has a “voting system” under HAVA. In turn, the district court did not err in finding that the govern- ment demonstrated a likelihood of success on the merits. B. Irreparable Harm The government also has the burden of demonstrating that it “is likely to suffer irreparable harm in the absence of preliminary relief.” Winter, 555 U.S. at 20. This means that the alleged harm “must be more than a mere possibility,” but it does not require that the harm “be occurring or be certain to occur before a court may grant relief[.]” Michigan v. U.S. Army Corps. of Eng’rs, 667 F.3d 765, 788 (7th Cir. 2011). 3 The Town argues that the district court erred in its application of this standard because the government has “not alleged a single

2 The Town contends that its interpretation does not create a loophole

because the Americans with Disabilities Act and Voting Rights Act protect accessibility in voting. The Town does not provide support for its asser- tion that overlapping or adjacent protection requires narrow construal of the provision at issue. 3 The harm must also be irreparable such that it cannot be “prevented

or fully rectified by the final judgment after trial.” Whitaker v. Kenosha Uni- fied Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1045 (7th Cir. 2017) (citation modified), abrogated on other grounds by Ill. Republican Party v. Pritzker, 973 F.3d 760 (7th Cir. 2020). The Town does not dispute the irreparable nature of the alleged harm. No. 24-2931 11

factual basis for the belief that the Town … has disenfran- chised voters.” The Town’s argument misunderstands both our prelimi- nary injunction law and the harm alleged here. As to the law, the government did not need to provide evidence that the Town has already disenfranchised voters. See Michigan, 667 F.3d at 788. More fundamentally, the district court did not grant the preliminary injunction based on finding past disen- franchisement. Rather, the district court found that the Town’s actions would likely “deprive” individuals with disa- bilities “of the opportunity to vote independently and pri- vately” that HAVA requires. And this requirement reflects the critical role the secret ballot occupies in our democratic sys- tem. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 343 (1995) (referring to the secret ballot as “the hard-won right to vote one’s conscience …”); Burson v. Freeman, 504 U.S. 191, 206 (1992) (describing the secret ballot as our nation’s time-tested method for preserving free and fair elections). For this reason, the Town’s focus on Chief Election Inspector Pinnow’s testi- mony that individuals with disabilities prefer receiving assis- tance over using a machine misses the point. Anecdotal pref- erences do not speak to an injury that lies in a lack of choice. Focusing on the injury of being denied the opportunity to vote privately and independently, the district court did not clearly err in its factual findings. Pinnow testified that indi- viduals with disabilities had voted before at the Town’s poll- ing place, approximated this number at “zero to one” an elec- tion, and provided two examples of these voters receiving as- sistance: a blind woman relied on her daughter’s assistance to fill out a ballot and a man who had suffered a stroke disclosed his vote to Pinnow so she could guide his hand to mark his 12 No. 24-2931

ballot. This testimony supports the court’s finding that the Town has disabled voters who need assistance when casting their vote. That the record suggests the Town’s removal of an accessible option may only affect a small number of individ- uals does not undermine the likelihood of harm. See League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014) (explaining that a restriction on the right to vote is an irreparable injury whether there are thirty or thirty thou- sand impacted). Pinnow’s testimony likewise supports the court’s finding that individuals with disabilities would lack the opportunity to vote privately and independently if they only had access to a paper ballot. The man telling Pinnow “who he wanted to vote for” and having her guide his hand exemplifies both a lack of privacy and independence. Even based on the limited record before us, we cannot say the district court clearly erred in finding irreparable harm. * * * The judgment of the district court is AFFIRMED.