Wisconsin Supreme Court's liberal justices appear willing to overturn ruling that barred most ballot drop boxes

The court's eventual ruling will have a major impact on the battleground state's elections heading into the 2024 presidential contest.

Residents drop mail-in ballots in an official ballot box in Milwaukee on Oct. 20, 2020. Scott Olson / Getty Images file

The Wisconsin Supreme Court seemed poised Monday to overturn a ruling it made less than two years ago that banned the use of most absentee ballot drop boxes in the state.

Doing so would effectively reinstate the use of most of those boxes across Wisconsin — a ruling that could have large ramifications on the 2024 presidential election in the crucial battleground.

In 2022, when conservatives had a 4-3 majority, the court ruled to significantly reduce the number of absentee ballot drop boxes in the state. But ideological control of the technically nonpartisan court flipped to liberals last year, setting in motion a chain of events that provided the court with the opportunity to reverse that ruling.

The four liberal justices on the Wisconsin Supreme Court repeatedly signaled in Monday’s oral arguments they felt the court ruled incorrectly on the issue 22 months earlier, with many noting that state law is silent when it comes to the specific issue of drop boxes. Liberal justices on the bench used their time to speak to dismiss false claims by conservatives that the use of such boxes were sources of fraud in prior elections.

“Just to be clear, there’s nothing in the statutes that says that drop boxes are unauthorized or illegal,” said Jill Karofsky, a liberal justice on the court.

Karofsky, at another point, also pointed out that Wisconsin statutes “talk about the privilege of voting by absentee” but that such statutes also say that doing so “must be carefully regulated to prevent the potential for fraud or abuse,” eliciting an attorney for the progressive group that filed the suit to point out that “there’s absolutely no evidence that there was any fraud or abuse in 2020 due to ballot drop boxes.”

Karofsky was one of the three liberals on the court who dissented in the July 2022 ruling, writing then that the drop boxes should be considered legal and constitutional. 

Janet Protasiewicz, whose victory in a Wisconsin Supreme Court race in 2023 gave liberals their first majority in 15 years, repeatedly signaled she joined those three justices in that view.

Specifically, Protasiewicz appeared to reject claims by attorneys seeking to keep the 2022 ruling in place who claimed that the doctrine of “stare decisis” — the judicial concept that judges should broadly respect legal precedents when formulating and writing opinions — should be relied on this situation.

She and other liberal justices pointed out that conservative attorneys and judges, including the ones pushing for the 2022 ruling to be kept in place, have rejected that concept in the past.

“I want to talk to you a little bit about stare decisis,” Protasiewicz said. “I’ve got a whole list of cases where you urge this court, either in oral arguments or in briefings, to depart from stare decisis. We can go through them if you want me to.”

“Why is stare decisis so critically unique in this particular case?” she added.

Moments earlier, Karofsky had read from the U.S. Supreme Court's 2022 opinion that overturned Roe v. Wade, in which the conservative majority dismissed stare decisis.

“‘Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences,’” Karofsky said, reading a line from the U.S. Supreme Court opinion.

“What are we to do here, if we believe that Teigen was egregiously wrong from the start, that its reasoning was exceptionally weak and that the decision has had damaging consequences,” she said. The name of the 2022 case decided by the Wisconsin Supreme Court is Teigen v. Wisconsin Elections Commission.

Karofsky added that if those three points were the criteria for a decision to be overturned, then the current case before the court was “check, check, check.”

Meanwhile, conservatives on the court signaled their continued skepticism regarding a broad use of ballot drop boxes.

“From my understanding, you’re arguing it’s unconstitutional to not have drop boxes as a method of returning absentee ballots, and that I don’t understand at all,” Justice Brian Hagedorn said.

“The statute as written also does not permit the use of what is colloquially referred to as drop boxes,” Justice Rebecca Bradley said.

“Where in the text does it reference drop boxes or anything like a drop box?” she asked.

Monday’s oral arguments marked the latest chapter in an ongoing saga surrounding the use of drop boxes in Wisconsin, a pivotal swing state.

The Wisconsin Elections Commission, which oversees elections in the state, approved funding for the expanded use of drop boxes during the Covid-19 pandemic in 2020.

But in a case brought by conservative groups, the state Supreme Court ruled in July 2022 that Wisconsin voters casting absentee ballots would no longer be able to drop them in boxes located anywhere except the offices of election clerks. It ruled that only the state Legislature — controlled by Republicans — has the power to enact laws and policy regarding absentee ballot drop boxes, not the Wisconsin Elections Commission.

After liberals won back the court majority in 2023, progressive political action committee Priorities USA filed a suit explicitly seeking to overturn the 2022 ruling curtailing the use of drop boxes, as well other rules and restrictions regarding absentee voting. (After a Wisconsin trial court narrowed the suit, the group appealed directly to the state Supreme Court, skipping over lower appeals courts.)

The Wisconsin Supreme Court’s four liberal justices voted in March to accept the case, agreeing only to resolve whether the 22-month-old ruling was incorrectly decided but not any other issues raised in the suit.

Priorities USA has said in filings that the 2022 ruling was incorrectly decided due to the fact that Wisconsin law is silent on the issue of drop boxes. While the group acknowledges that Wisconsin laws do make clear that absentee ballots must be returned by mail or in person, they raise the question that it remains unclear whether voters can return absentee ballots in person to locations other than a clerk’s office.

Democrats and progressives in the state filed numerous briefs in the case urging the court to overturn its 2022 decision. Conservative groups and the Wisconsin Republican Party have filed several briefs in support of upholding the current rules regarding drop boxes.

In the years following the 2020 election, the use of drop boxes for absentee ballots was repeatedly criticized by former President Donald Trump and his allies, who falsely claimed that the practice led to widespread voter fraud in 2020.