Why Absentee Ballot Drop Boxes Are Now Legal

Why did the Wisconsin Supreme Court rule in favor of allowing absentee ballot drop boxes in Wisconsin?

In a case called Priorities USA v. Wisconsin Elections Commission, the state high court this month reversed a decision it made in July 2022 that had banned the use of these drop boxes. What explains the change two years later?

The Wisconsin Elections Commission defined drop boxes as:

A secure, locked structure operated by local election officials. Voters may deposit their ballot in a drop box at any time after they receive it in the mail up to the time of the last ballot collection Election Day.

It appears that drop boxes had been used for many years, particularly among Wisconsin’s small towns and villages with part-time clerks, allowing voters to return their absentee ballots outside office hours. However, in 2020, in response to the spread of COVID-19, Wisconsin’s largest cities, including Milwaukee and Madison, adopted drop boxes so that people could safely submit their ballots, while avoiding the long lines they had encountered in Wisconsin’s spring election.

In his effort to overturn his loss in the 2020 presidential election, Donald Trump challenged the use of drop boxes and demanded that all ballots from Milwaukee and Madison from drop boxes in those cities be thrown out. On a 4-3 vote, the Wisconsin Supreme Court denied Trump’s request, ruling that it came too late.

While Trump’s claims failed to reverse the election, his attacks on drop boxes did succeed in promoting hostility among Republicans to absentee voting in general and drop boxes in particular. Without any evidence, drop boxes were claimed to promote election fraud. In June 2021, two Republican activists from Waukesha County brought suit against the use of drop boxes.

In a case called Teigen v. Wisconsin Elections Commission the Wisconsin Supreme Court voted 4-3 to ban drop boxes. Justices Rebecca Bradley, Annette Ziegler, Patience Roggensack and Brian Hagedorn voted against them and Justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky voted to allow them. The case came down to how to interpret 12 words in state law: that the absentee ballot should be “delivered in person, to the municipal clerk issuing the ballot or ballots.”

The published version of the decision, including all concurrences and dissents runs to 141 pages. How did it take 141 pages to decide on the meaning of these 12 words?

The decision’s heft cannot be blamed on the dissent. Justice Ann Walsh Bradley, joined by Justices Dallet and Karofsky, took just 19 of the 141 pages.

A large portion of the decision’s bloat stems from the choice of the majority opinion’s author, Justice Rebecca Bradley. She likes to use her court decisions as an opportunity to hammer home her personal opinions.

“Throughout history, tyrants have claimed electoral victory via elections conducted in violation of governing law,” she wrote. She went on to list various dictators who claimed unanimous (or near-unanimous votes), including Saddam Hussein, North Korean leaders Kim Jong-un and his father, Kim Jong-il, Raul Castro and Syrian President Bashar al-Assad. Apparently allowing drop boxes would be the trigger for evolving into a dictatorship. Precisely how was not explained.

These comments also reflect belief that there is only one way—her way — to interpret the law, and that the ballot must be given to a person. But once a ballot is deposited in the drop box it is under the secure control of the election official. It is reasonable, therefore, to consider that it has been delivered to the municipal clerk. Indeed, you could argue that dropping a ballot into a drop box is very similar to dropping it into a public mail box, but is actually more secure. In the drop box, for instance, the ballot need not go through a sorting process to separate it from other mail.

Another cause of the bloat in the 2022 decision is a nasty dispute among the four opponents of drop boxes with Justice Hagedorn going his own way on issues like standing. The result was a patchwork with some paragraphs counted as the decision of the Court (4–10, 12–13, 52–63, and 73–85), and others not (paragraphs 1–3, 11, 14–51, 64–72, 86-87, and footnote 29).

Rebecca Bradley is plainly irate at Justice Hagedorn. Compared to her, he is the sole of civility, noting that “the election law statutes we are asked to consider are by no means a model of clarity. … Reasonable minds might read them differently.”

In the spring 2023 election Janet Protasiewicz was elected to replace Justice Roggensack, who retired. As a result, in the recently decided Priorities USA v. WEC decision the court allowed — again by a 4-3 decision — the return of drop boxes.

The expansion of drop boxes in 2020 was driven by a concern about the spread of the COVID-19 virus. However, it also benefited other people, as a recent post on the neighborhood website Nextdoor explains:

Two recent posts about checks being stolen from blue mail boxes prompts me to write. I use absentee ballots to vote. I don’t drive and don’t get around too well, so I was relieved when the Wisconsin Supreme Court has reinstated the use of ballot drop boxes. … I was forced to put my ballot into a small, cheap tin box on the wall of my apartment lobby, with a slot so big a child or small adult could reach in and take out my ballot or could be simply ripped off the wall with little effort.

Some even interpret the absentee ballots law saying only the voter can turn in or mail a ballot, so I can’t even have my neighbor (who witnessed my filling in of ballot) take my ballot to city hall.

So, the option for the disabled WAS, to rely on mail boxes proven to be unsecure or just not vote. Now we have an option.

Justice Rebeca Bradley wrote the dissent in Priorities v. WEC. Her dissent did not address the question of whether the use was good for the voters, especially in the case of voters with mobility issues like the author of the post quoted above.

Instead, Bradley brings up two issues. The first is stare decisis, the principle that justices should try to avoid reversing previous decisions. In support, she quotes US Supreme Court Justice Brett Kavanaugh, an odd choice since he was willing to reverse the court’s long-standing precedent on abortion.

In a bizarre twist of reasoning Bradley also claims that the decision opens the door to any possible way of submitting absentee ballots:

An unattended cardboard box on the clerk’s driveway? An unsecured sack sitting outside the local library or on a college campus? Door-to-door retrieval from voters’ homes or dorm rooms?

All of these are lawful under the court’s reasoning, Bradley claims.