Absentee ballot drop boxes: judge rules they break Wisconsin law

Absentee ballot drop boxes break Wisconsin law, a Waukesha County judge ruled.

"I’m satisfied that there is no authority, no statutory authority to issue, to have dropboxes used for the collection of absentee ballots," ruled Waukesha County Circuit Judge Michael Bohren.

Bohren on Thursday Jan. 13, ruled drop boxes anywhere other than at offices of local clerks should not be permitted.

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The judge sided with The Wisconsin Institute for Law and Liberty (WILL), a conservative law firm, which challenged the drop boxes and argued they violated state law. 

"In none of the arguments this court heard, no one has been able to explain how putting a ballot into a drop box counts as in-person delivery," said WILL's Luke Berg. "There is no person present when a drop box is alone in a park with no one else around."

Absentee ballot dropbox

WILL cites Wisconsin statute § 6.87(4)(b)1, which states "the envelope shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots" in regard to absentee ballots.

Amid the COVID-19 pandemic, Wisconsin housed more than 500 absentee ballot drop boxes – 15 of which were in Milwaukee, including outside public libraries and near City Hall. 

The Wisconsin Elections Commission stands behind the drop boxes' use, saying in an August 2020 memo that it was providing "best practices" for local communities who chose to use drop boxes.

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The U.S. Senate's Democratic campaign arm backed up the commission's position in the Waukesha court case, held over Zoom.

"As the expert agency with administration of election law, established by statute, the WEC is entitled to deference in the administering of statutes, and that deference should apply here," said John Devaney, attorney for the Democratic Senatorial Campaign Committee (DSCC).

In court filing, the DSCC pointed to a 2020 letter from a lawyer representing Wisconsin's Republican legislative leaders – Assembly Speaker Robin Vos and then-Senate Majority Leader Scott Fitzgerald. The Republicans' lawyer said Vos and Fitzgerald "wholeheartedly support" options like "...voters may also deposit their completed absentee ballots in authorized 'drop boxes,' which 'must be secured and locked at all times' to protect ballot integrity."

Scott Fitzgerald (L) and Robin Vos (R)

The lawsuit targets the Wisconsin Elections Commission, but other groups besides the DSCC joined to defend drop boxes: Disability Rights Wisconsin, Wisconsin Faith Voice For Justice, and the League of Women Voters of Wisconsin.

Law Foward, which is representing interveners fighting the WILL lawsuit, says they will appeal. "This ruling should not go into effect; we’ll be seeking a stay while appeals unfold. [The U.S. Supreme Court] has said states cannot change the election rules shortly before election day, Law Forward's Jeff Mandell tweeted. "Last year, the 7th Cir. said that the state cannot change the rules in the 6 months before election day."

This week, a Republican-controlled legislative committee voted to require the Wisconsin Elections Commission to publish formal rules on drop boxes and their use. That would allow that same legislative committee to scrap the rule. The Wisconsin Elections Commission was set to meet later this month to figure out its response to the committee. 

Ballot drop box

On the same day drop boxes are debated in Wisconsin, the U.S. House passed the Freedom to Vote Act. It would require every jurisdiction offer secured ballot drop boxes for any election with federal races, that is, Congress and the presidency.

Democratic Gov. Tony Evers last year vetoed Republican bills that would have explicitly authorized ballot drop boxes, but also limit the number of locations compared with what was found in 2020 and 2021.

Bohren's ruling raises questions ahead of the state's primary on Feb. 15, when Milwaukee will have a contested mayoral primary.

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