Will Wisconsin Supreme Court Legalize Absentee Ballot Boxes?

During the height of the COVID-19 pandemic, the use of drop boxes became a very popular way to submit absentee ballots. Wisconsin voters viewed drop boxes as having several virtues. These included avoiding the danger of contracting Covid from polling place crowds and avoiding the long lines seen in Wisconsin’s April 2020 elections. Ballots deposited in the drop boxes would be counted so long as they were deposited before the close of voting.

In his attempts to reverse his loss in the November 2020 election, then-President Donald Trump targeted the use of drop boxes. He asked the Wisconsin Supreme Court to throw out all the absentee ballots submitted using drop boxes in Milwaukee and Dane counties (but not in other, more Republican counties). By a vote of 4-3, the Court rejected Trump’s request, which would have resulted in his carrying Wisconsin. Conservative Justice Brian Hagedorn sided with the court’s three liberals on the decision.

Later, however, in a case called Richard Teigen v. Wisconsin Elections Commission, Hagedorn changed his mind on the issue, and a 4-3 majority of the court ruled that drop boxes were illegal.

Now, with a new, 4-3 liberal court majority, drop boxes may be poised to return in Wisconsin. An organization called Priorities USA has brought a lawsuit aimed at making voting easier in Wisconsin. This was brought in a Petition for “Original action,” meaning that the Supreme Court take it directly, rather than as an appeal from a decision by a circuit court or court of appeal.

Represented by the well-known Elias Law Group, Priorities USA’ complaint lists four issues, each of which make it more difficult to cast an absentee ballot:

1. The requirement that absentee ballots be accompanied by the signature and address of a witness.
2. The previous Court’s prohibition against drop boxes.
3. The requirement that mistakes on absentee ballots be corrected by the end of election day.
4. Language in article 6.84 of the Wisconsin statutes that disparages absentee voting. It starts by describing voting as “a constitutional right, the vigorous exercise of which should be strongly encouraged. In contrast, voting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place.” The brief complains that this provision “seeks to establish absentee votes as being less valuable and worthy of protection than in-person ballots.”

On March 12 of this year, in an unsigned opinion, the court granted the petition to bypass lower courts, but only for the second of the four issues, the drop box prohibition. It made it clear that it did not want to hear about any of the other three issues—”plaintiffs-appellants may not raise or argue issues not set forth in this order.” It set May 13 for oral arguments on Priorities USA v. Wisconsin Elections Commission.

The court majority does not spell out why it decided to accept the drop box issue and only that issue. Unsurprisingly, in their dissent, Justices Rebecca Grassl Bradley and Annette Ziegler bring up that question.

In selecting only one of a group of issues, the Priorities case echoes Evers v. Marklein. In that case, described in a previous Data Wonk column, the governor challenged several laws giving legislative committees veto power over actions by executive agencies. Most of these date from the 2018 “lame duck” session between Scott Walker’s loss in the November election and Tony Evers’ January inauguration, aimed at hobbling the power of the incoming governor.

Three of these laws were challenged by the governor. First was the ability of the Legislature’s Joint Committee on Finance to veto or hold without action conservation projects selected by the Wisconsin Department of Natural Resources (DNR) under the Knowles-Nelson Stewardship Program. The second gave the Legislature’s Joint Committee on Employment Relations the ability to block Universities of Wisconsin system employees pay raises until the university agreed to cut spending on diversity, equity and inclusion (DEI) programs. The third gave the Legislature’s Joint Committee for Review of Administrative Rules the ability to veto efforts to update the state’s commercial building standards and ethics standards for social workers, marriage and family therapists, and professional counselors.

The Court accepted only the first of these issues—the ability of its committee to reject or hold conservation projects. A recent Milwaukee area example was the committee’s veto of a grant to the Ozaukee Washington Land Trust to buy the very scenic Clay Bluffs-Cedar Gorge site overlooking Lake Michigan just south of Port Washington. The author of the veto was never disclosed. Apparently, it was done as a favor to someone who hoped to build luxury housing on the very scenic site.

The Court made it clear that its consideration of an original action is granted solely with respect to the Knowles-Nelson Stewardship Program issue set. It scheduled oral argument in this matter for April 17, 2024, at 9:30 a.m.

The two issues chosen by the Supreme Court—whether to revive absentee ballot boxes and the Legislature’s sabotaging of Knowles-Nelson conservation grants–are ripe for reconsideration. The secrecy about who ordered the hold on Clay Bluffs, in particular, is strongly suggestive of corruption. And even though Covid has loosened its grip, drop boxes offer a useful alternative, especially for people with mobility issues.

But why did the court choose only those particular issues? It doesn’t say.

It also does not say what it will do with the five issues it currently has set aside. However, it uses the same language in both cases: that these issues “are held in abeyance pending further order of the court.”