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Thursday, March 28, 2024 | Back issues
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Wisconsin judge blocks use of absentee ballot drop boxes

The judge agreed with opponents of drop boxes who say they wrongfully remove a ballot from a voter’s control, jeopardizing election integrity.

WAUKESHA, Wis. (CN) — A Wisconsin judge on Thursday ordered the state elections board to withdraw guidance greenlighting absentee ballot drop boxes and the return of absentee ballots by someone other than the voter, siding with conservatives who questioned the legality of both practices weeks before local spring elections and months ahead of hugely consequential elections for Wisconsin’s governorship and a U.S. Senate seat.

The underlying lawsuit contested guidance memos from the Wisconsin Elections Commission, or WEC, in March and August of 2020 allowing third parties to return someone else’s absentee ballot and absentee ballots to be returned to unstaffed drop boxes in a voter’s municipality instead of being mailed or returned in person to a municipal clerk.

The plaintiffs were represented by the Wisconsin Institute for Law & Liberty, or WILL, a nonprofit law firm that advocates for conservative causes. The bipartisan WEC was the named defendant in the action.

WILL tried in June of last year to bring its drop boxes dispute directly to the Wisconsin Supreme Court, but the high court split 4-3 and declined to take on the case. Three days later, the advocacy group filed the lawsuit that was argued on Thursday before Waukesha County Circuit Court Judge Michael Bohren.

Concluding a three-and-a-half-hour proceeding, Bohren said Wisconsin election laws are very specific and felt both the disputed practices, which he said were “major policy decisions that alter how our absentee ballot process operates,” were contrary to the law.

Bohren compared them to in-person voting on Election Day and said statutes are unambiguous that an elector must be personally involved in casting their ballot, regardless of informal rules issued to clerks by the WEC. In an order from the bench, he granted summary judgment to the plaintiffs, entered an injunction giving the WEC two weeks to issue a memo withdrawing its promotion of both absentee voting options and said such future guidance must go through statutory rulemaking procedures.

The judge's ruling hewed close to arguments from Luke Berg, a lawyer with WILL representing two voters who filed the lawsuit, who posited Thursday that there are only two legal ways to vote absentee in Wisconsin: a voter can either mail the ballot themselves, or they can return it to the municipal clerk’s office themselves.

To accept the WEC’s argument would mean “a shoebox on a bench in a park would be legal for collecting ballots,” Berg said, illustrating concerns some have that the unmanned drop boxes are not secure enough.

Appearing for the WEC, Assistant Attorney General Steven Kilpatrick argued that state law bans neither the use of drop boxes nor an authorized third party returning someone else’s absentee ballot.

The state’s attorney disputed Berg’s shoebox analogy, saying the secure drop boxes are locked such that only election officials can access them, the boxes are monitored and emptied daily, and chain of custody laws are strictly followed whenever ballots are collected.

Also appearing on Thursday were Scott Thompson, staff counsel with the progressive Madison-based Law Forward firm, and John Devaney, a partner with the Washington office of Perkins Coie. They represented intervenors including Disability Rights Wisconsin and the Democratic Senatorial Campaign Committee, respectively.

More than 2 million absentee ballots were cast throughout Wisconsin during the 2020 election, including via ballot drop boxes, an unprecedented number largely driven by the Covid-19 pandemic. President Joe Biden won the state over former President Donald Trump by roughly 20,000 votes.

Ever since, drop boxes have been in the crosshairs of Republican lawmakers and their supporters, who claim they are illegal and susceptible to tampering or other fraud, though there is little to no evidence to support the latter claim.

Republicans have turned to both legislation and litigation in their full-court press to restrict absentee voting procedures like drop boxes. Governor Tony Evers, a Democrat, vetoed a raft of bills restricting absentee voting last summer, part of his maintained refusal to enact any law that makes voting harder.

On Monday, the Wisconsin Legislature’s Joint Committee for Review of Administrative Rules, controlled 6-4 by Republicans, voted along party lines to force the WEC by early February to enact formal rules regarding drop boxes and guidance allowing clerks to make limited corrections on absentee ballot envelopes so the votes can be counted. Once the rules are formal, the door is open for the committee to kill them.

The WEC is working on multiple administrative rules in response to recommendations from two audits of the 2020 election—neither of which found widespread fraud—but that process can take months or more than a year.

A WEC spokesperson confirmed Thursday that agency staff have already begun creating permanent rules regarding both the committee’s concerns. He said the commissioners are meeting on Jan. 28 to consider drafting emergency rules or withdrawing current guidance to comply with the committee’s request to have rules ready by next month.

Responding to Bohren’s ruling, the spokesperson said that “staff and WEC commissioners plan to review the court’s order and consult with legal counsel in the coming days.”

In the courts, two other lawsuits challenging drop boxes are at play in addition to the one argued on Thursday, though how they are affected by Thursday’s ruling was not immediately clear.

One, also from WILL, was filed in Waukesha last week. The conservative firm is representing a Hartland, Wisconsin, taxpayer who filed a complaint over drop boxes directly with the WEC, and after the agency rejected his complaint last month, he brought his lawsuit to overturn the agency’s decision.

Another lawsuit disputing multiple WEC rules in place in 2020, including drop boxes, was filed with the Wisconsin Supreme Court in November by former Republican lieutenant governor Rebecca Kleefisch, who is running for governor against Evers in his reelection bid this fall. The high court has not decided whether to accept Kleefisch’s petition.

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Categories / Government, Politics, Regional

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