Ballot drop boxes staying for now, Wisconsin Supreme Court says

Ballot drop box

A divided Wisconsin Supreme Court on Friday allowed absentee ballot boxes to remain in place for the Feb. 15 statewide spring primary election for local offices, but said it will decide later about their legality going forward.

The court agreed to take the case, as requested by a conservative group, but did not lift a stay on a lower court ruling declaring that no ballot boxes could be in place beyond those at municipal clerk's offices. A state appeals court put the stay in place.

"Vacating the stay would also likely cause substantial harm to the defendants and the public interest," the court said in its decision issued Friday evening. "The February 2022 election process is already underway."

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The fight is being closely watched in battleground Wisconsin as Republicans there push to limit access to absentee ballots following President Joe Biden's narrow win over Donald Trump in 2020. Democratic Gov. Tony Evers and Republican U.S. Sen. Ron Johnson are on the ballot in November.

Justice Brian Hagedorn, a conservative who sometimes sides with liberal justices, again proved himself to be the deciding vote in the 4-3 ruling. Three conservative justices dissented and argued that the stay should have been lifted to disallow absentee ballot boxes immediately.

Wisconsin Supreme Court

Wisconsin Supreme Court

The ruling came after the state elections commission failed to reach a consensus on how to handle Republican lawmakers' demands that they either withdraw guidance on absentee ballot drop boxes or quickly publish formal rules, opening the door to yet another legal battle.

The Wisconsin Elections Commission, evenly divided between Republicans and Democrats, deadlocked 3-3 Friday three times on what to do next. That means the current guidance telling municipal clerks that drop boxes can be placed at multiple locations remains in place. Wisconsin law is silent on drop boxes.

"It's up to the courts now," said Democratic commissioner Mark Thomsen.

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Republican Sen. Steve Nass, head of the rules committee that ordered the commission to take action, said the Legislature would "rapidly commence litigation."

Thomsen argued against taking any action before the Supreme Court weighs in. The court issued its decision to take the case hours later. The elections commission planned to meet again Monday.

Republicans on the commission advocated for withdrawing the commission's current guidance, as Republicans in the Legislature ordered. That motion failed 3-3, as did one supported by Democrats to pursue writing an emergency rule on drop boxes that is consistent with current guidance.

Republican commissioner Dean Knudson argued that the easiest solution was to withdraw the guidance.

Wisconsin Capitol in Madison

"It’s simple, it’s common sense, it’s straightforward," he said.

The commission issued guidance on drop boxes in a move to make voting more convenient and safer as the COVID-19 pandemic intensified.

Republicans who previously voiced support for absentee drop boxes have intensified criticism following Trump's loss, saying they increase the potential for fraud.

No widespread fraud has been found in Wisconsin, despite numerous lawsuits and reviews, and to date only five people have been charged with voter fraud in Wisconsin out of nearly 3.3 million who cast ballots in the presidential race.

The elections commission also voted 4-2 against retracting its guidance issued in October 2016 allowing clerks to correct witness address omissions and mistakes on absentee ballot envelopes without contacting the witness or the voter.

The Legislature's rules committee earlier this month ordered the commission to publish the guidance as an emergency rule by Feb. 9, while it works on a permanent rule.

The commission voted unanimously Friday to move ahead with drafting an emergency rule. But it put off deciding whether the rule will follow its current guidance or take a different approach until a meeting Monday night.

Republicans have made similar moves since Trump’s defeat to tighten access to ballots in other battleground states. The restrictions especially target voting methods that have been rising in popularity and erecting hurdles to mail balloting and early voting that saw explosive growth earlier in the pandemic. More than 40% of all voters in the 2020 presidential election cast mail ballots, a record high.