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Wisconsin Supreme Court bars absentee ballot drop boxes outside elections offices

The ruling could have broad ramifications for voter turnout in the state’s closely watched governor’s and U.S. Senate races, as well as elections beyond 2022.
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Wisconsin voters casting absentee ballots will no longer be able to drop them in boxes located anywhere except the offices of election clerks, the state’s Supreme Court ruled Friday.

The 4-3 ruling by the Wisconsin Supreme Court’s conservative majority is a setback for Democrats in the state, who had advocated for the continuation of the more lenient rules about drop boxes that arose during the pandemic. The decision is likely have ramifications for voter turnout in the state’s closely watched governor’s and U.S. Senate races this summer and fall —  as well as elections beyond 2022. Democratic Gov. Tony Evers and Republican Sen. Ron Johnson are seeking re-election, with primaries scheduled for Aug. 9.

The use of drop boxes for absentee ballots has been repeatedly criticized by former President Donald Trump and his allies, who have falsely claimed that the practice led to widespread voter fraud in 2020. Wisconsin is one of many states where Republicans, often at Trump’s urging, have waged war on their use.

The state's high court ruled that only the the state Legislature — currently controlled by Republicans — has the power to enact laws and policy regarding absentee ballot drop boxes, not the Wisconsin Elections Commission, a bipartisan organization that oversees elections in the state.

The court, however, did not rule on another pivotal issue in the case: whether absentee ballots could be dropped off at or mailed to local elections clerks’ offices by people other than the ones casting the votes — a practice conservatives have labeled  “ballot harvesting.”

“Only the legislature may permit absentee voting via ballot drop boxes. WEC cannot,” the court’s conservative majority wrote in the opinion.

“Ballot drop boxes appear nowhere in the detailed statutory system for absentee voting," the justices wrote. "WEC’s authorization of ballot drop boxes was unlawful, and we therefore affirm the circuit court’s declarations and permanent injunction of WEC’s erroneous interpretations of law except to the extent its remedies required absentee voters to personally mail their ballots, an issue we do not decide at this time, and we decline to decide at this time whether the memos are also invalid as unpromulgated administrative rules." 

In a concurring opinion, Justice Brian Hagedorn, whom court watchers have deemed the bench's swing vote, wrote that the case before the court “was not about ensuring everyone who wants to vote can" or about "making absentee voting more convenient and secure.”

“Those are policy concerns, and where the law does not speak, they are the business of the other branches, not the judicial branch,” he wrote. 

Friday's ruling is yet another chapter in the legal saga over the use of absentee ballot drop boxes.

The lawsuit before the court was brought by the Wisconsin Institute for Law and Liberty, a conservative legal organization, on behalf of two voters. In January, a Waukesha County circuit judge first ruled on the case by saying absentee ballot drop boxes can’t be used in Wisconsin. The judge said state law allows absentee ballots to be returned in person or by mail — but not in ballot drop boxes — and that absentee ballots could be dropped off at or mailed to local election clerks’ offices only by the people casting the votes.

A state appeals court then ruled that drop boxes could be used in the state’s judicial primaries in February because they were occurring so soon after the county circuit court ruling. The state Supreme Court later took over the case and agreed that the boxes could be used in February but not in April.

Voting rights advocates have argued that getting rid of absentee ballot drop boxes would make it more difficult for many voters to cast ballots — a position the court’s liberal wing echoed in its dissent in February’s ruling and again on Friday.

The majority's opinion on Friday, Justice Ann Walsh Bradley wrote in her dissent, "blithely and erroneously seeks to sow distrust in the administration of our elections and through its faulty analysis erects yet another barrier for voters to exercise this ‘sacred right.’”

Trump has repeatedly suggested without evidence that drop boxes were a source of widespread voter fraud in the 2020 election, which he lost. He has focused many of the false claims on states where President Joe Biden won by small margins. Biden defeated Trump by fewer than 21,000 votes in Wisconsin.

There is no proof that drop boxes — mailbox-like containers that offer voters a convenient way to cast their ballots — enable fraud, and election officials have created safeguards to ensure that mail-in ballots are cast by eligible voters. Each state has its own rules; typically, mail-in ballots are verified by election officials who analyze the signatures on them against the registered voters’ on-file signatures.

But because Wisconsin law includes no provisions about drop boxes, the state had allowed both attended and unattended drop boxes to be used for years. However, the Wisconsin Elections Commission issued guidance in 2020, at the height of the coronavirus pandemic, giving local election clerks the discretion to place drop boxes in any location. The practice was upended when the Waukesha County judge ordered the commission to rescind the guidance in January.