During two hours of oral arguments, which began Wednesday, justices on the state's high court peppered litigants with questions about exactly where such drop boxes could legally be placed.
That voting method has been repeatedly lambasted by former President Donald Trump and his allies, who have falsely claimed that absentee ballot drop boxes led to widespread voter fraud in 2020. Wisconsin is one of many states where Republicans, often at Trump’s urging, have waged war on the practice.
A final ruling is expected in the case in June, and the outcome could affect voter turnout in two key races in which Democratic Gov. Tony Evers and Republican Sen. Ron Johnson are seeking re-election, with primaries scheduled for August.
The case before the Wisconsin Supreme Court marks the latest chapter in a legal saga over the use of absentee ballot drop boxes. In February, the court let a ban on drop boxes remain in effect for local elections in April. The seven-member court broke 4-3 along ideological lines in the ruling, which also let stand a prohibition on allowing residents to return the absentee ballots of fellow voters.
It wasn't clear during oral arguments which way the justices might rule, but all seven — including Brian Hagedorn, the court’s swing vote — repeatedly asked hypothetical questions about where and how drop boxes might be allowed and whether voters could return or mail the absentee ballots of other voters.
In one persistent line of questioning, Hagedorn asked the attorney representing the Wisconsin Institute for Law and Liberty, a conservative organization that brought the original suit, whether a mail slot for ballots in a county clerk’s office could be used. He then asked about the legality of a slot on the outside of the building that would lead directly to the clerk's office, even if the clerk wasn't present, before asking about whether a staffed drop box would be legal.
Later, Hagedorn appeared to express skepticism over the part of the suit that attempted to keep in place the prohibition on allowing residents to return the absentee ballots of fellow voters.
“If I’m mailing an absentee ballot and my wife takes the three steps to put it in the mailbox, have I violated the law?” Hagedorn asked. “Do we need to decide that question?" he added.
Hagedorn’s line of questioning could signal the fate of drop boxes, particularly given the murky statutes surrounding the issue. Hagedorn, who joined his fellow conservatives in letting the drop box ban stay in effect for the April elections, has ruled against Trump and his allies in multiple suits that sought to overturn the 2020 election results. He is considered the court's swing vote.
The the lawsuit before the court was brought by the Wisconsin Institute for Law and Liberty 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.
Conservatives have ridiculed having someone else drop off or mail a ballot as “ballot harvesting.”
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.
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.
Because Wisconsin law includes no provisions about drop boxes, the state allows both attended and unattended drop boxes to be used — and it has for years. However, the Wisconsin Elections Commission, a nonpartisan organization that oversees elections in the state, issued guidance in 2020, at the height of the coronavirus pandemic, giving local election clerks the discretion to place drop boxes in any location.
But the practice was upended when the Waukesha County judge ordered the commission to rescind the guidance in January.
The lack of clarity has led to a push by Republicans who control the Legislature to draft bills to create rules governing the placement of drop boxes.
Republican legislators enacted limits on drop boxes in Florida, Georgia, Indiana and Iowa last year.