State Supreme Court Rules Ballot Drop Boxes Illegal

Absentee ballot drop boxes won’t be allowed in Wisconsin under a ruling handed down Friday by a divided Wisconsin Supreme Court.

The court’s conservative majority also ruled that it’s illegal for someone else, like a spouse or roommate, to return a voter’s completed absentee ballot to the clerk’s office, meaning the voter must carry out that task personally.

The majority decision was written by Justice Rebecca Bradley and joined by the rest of the court’s conservative majority, including swing Justice Brian Hagedorn.

Both rulings mean absentee voting in Wisconsin’s 2022 election and beyond won’t be as convenient as it was two years ago when it surged during the early stages of the COVID-19 pandemic.

“Nothing in the statutory language detailing the procedures by which absentee ballots may be cast mentions drop boxes or anything like them,” Bradley wrote.

The Wisconsin Elections Commission issued guidance in 2020 providing local clerks with advice on the best practices for unstaffed drop boxes if they chose to use them. Bradley wrote that guidance exceeded the WEC’s authority.

“WEC’s staff may have been trying to make voting as easy as possible during the pandemic, but whatever their motivations, WEC must follow Wisconsin statutes,” Bradley wrote. “Good intentions never override the law.”

Bradley also wrote that absentee ballots delivered in person at a clerk’s office can’t be dropped off by a voter’s spouse or roommate. In other words, they must be delivered by the voter, and no one else.

“Reading the election statutes in context and as a whole, we conclude an absentee ballot delivered in person … must be delivered personally by the voter,” Bradley wrote.

The court’s ruling did not address whether someone who votes absentee by mail must personally place their ballot into a mailbox, meaning someone else could still complete that task.

The court’s liberals dissented, with Justice Ann Walsh Bradley writing that the ruling would make it harder to vote.

“Although it pays lip service to the import of the right to vote, the majority/lead opinion has the practical effect of making it more difficult to exercise it,” wrote Justice Walsh Bradley. “A ballot drop box is a simple and perfectly legal solution to make voting easier, especially in the midst of a global pandemic. But it is apparently a bridge too far for a majority of this court.”

The number of drop boxes in Wisconsin grew dramatically in 2020 as the COVID-19 pandemic caused interest in absentee voting to spike as many residents looked for ways to avoid in-person voting. Roughly 2 million residents voted absentee in the November 2020 election, shattering the previous record. While many voted absentee by mail, drop boxes were billed as an option for people who were worried about potential delays in the U.S. Postal Service.

According to the Wisconsin Elections Commission, there were 528 drop boxes in use in the 2020 presidential election spread across 430 municipalities. By the spring of 2021, local officials reported a total of 570 drop boxes spread across 66 of Wisconsin’s 72 counties.

A group of plaintiffs represented by the conservative Wisconsin Institute for Law and Liberty filed a lawsuit to end the practice, arguing that drop boxes were not explicitly allowed under Wisconsin law. WILL also argued that state law required a voter – and no one else – to return their own ballot. WILL argued that requirement applied whether a ballot was being returned at their clerk’s office or by mail.

In January, Waukesha County Judge Michael Bohren sided with WILL, ordering the Wisconsin Elections Commission to rescind its guidance to clerks on how to use the drop boxes. Bohren said the WEC had exceeded its authority when it issued the recommendations.

The state Supreme Court initially stayed Bohren’s ruling for the February primary, leaving drop boxes in place for that low-turnout election. But justices allowed Bohren’s order to take effect for the April election. Both orders were decided 4-3, with Hagedorn casting the deciding vote.

Those fighting the lawsuit, including the WEC, argued clerks were within their legal rights to create alternate sites for returning absentee ballots. Others fighting the case, including Disability Rights Wisconsin, argued banning other people from returning a voter’s ballot could disenfranchise tens of thousands of voters whose physical disabilities prevent them from physically putting their own absentee ballots in the mail.

During oral arguments for the case in April, WILL’s assertion that only a voter could return their absentee ballot drew extensive questioning from justices, with one suggesting the conservative group’s argument was “absurd.”

But ultimately, most of WILL’s argument prevailed with the court’s conservative majority, including with Hagedorn, whose vote has proven critical on the court.

Wisconsin Supreme Court rules absentee ballot drop boxes are illegal in Wisconsin was originally published by Wisconsin Public Radio.