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Wisconsin judge refuses to pause ban on ballot drop boxes

Denying a motion to stay his injunction, the judge called rule changes allowing for drop boxes an “affront to society.”

WAUKESHA, Wis.  (CN) — A Wisconsin judge’s ruling banning ballot drop boxes will be in effect for the state’s February primary elections, the judge ruled Friday afternoon. 

Ruling from the bench, Waukesha County Circuit Court Judge Michael Bohren denied a motion to stay a temporary injunction he granted last Thursday to a group of voters arguing that the use of drop boxes and the return of absentee ballots by people other than the voter didn’t comply with state election law. He did so over the objections of attorneys for the state and for a coalition of progressive groups, who argued that changes to election law so close to a primary would confuse voters and run contrary to a 2006 U.S. Supreme Court decision. 

“There are people across the state of Wisconsin who believe they cannot vote,” attorney Scott Thompson of the progressive Madison firm Law Forward told Bohren, arguing that the injunction should be stayed pending the state and his clients’ appeal to the Wisconsin Court of Appeals. He added that absentee ballots have already been sent out to municipal clerks, meaning that “not only is it close to an election, it may be in the midst of an election.” 

Luke Berg of the Wisconsin Institute for Law & Liberty, a conservative nonprofit, argued against Thompson and Assistant Attorney General Steven Kilpatrick. Abandoning drop boxes, he said, wouldn’t stop people from voting because it would return the state’s elections to the status quo they knew before the start of the Covid-19 pandemic. As for the clerks, Berg said, “This is not a particularly complicated issue… they can simply remove any illegal drop boxes.” 

Center stage at the hearing was the U.S. Supreme Court’s decision in Purcell v. Gonzalez, which warns against last-minute changes to election law before voters hit the polls. While Kilpatrick and Thompson argued that guidance should be heeded in Wisconsin, Berg said, and Bohren agreed, that Purcell was meant to apply only to federal elections.

“Although it was just minutes ago argued that Purcell dealt with massive voter confusion,” the judge said, “I’ve read the case a number of times, I understand the issues of the case, but I don’t see it as having the dramatic impact described by attorney Thompson.” 

Purcell, I’m satisfied, addresses federal court interference with state election procedure,” he continued, adding that there was still “plenty of time” for clerks to address the changes. 

When the Wisconsin Elections Commission made rules allowing for drop boxes, Bohren said, it “took a position that didn’t only modify the statute, they changed it.” Bohren called the change an “affront to society,” and said that he didn’t believe there was a great likelihood that he would be reversed on appeal. 

He also dismissed Thompson’s argument that voters, particularly disabled voters, would be disenfranchised by the injunction, and found that “the public’s interest really benefits by statutes being administered by what they say, as opposed to what other people think they say.” 

After his ruling, Bohren briefly considered arguments for shorter stays to allow the elections commission to meet and issue new guidance. Elections officials face a deadline to send out ballots on Monday, Kilpatrick said, and the commission’s next meeting is not yet scheduled. 

Bohren eventually decided against the stay. “I’m satisfied there’s sufficient time for the commission to act,” he said, though he directed Berg to write a proposed order as quickly as possible to speed up proceedings. 

Wisconsin has been a hot spot for electioneering turmoil in recent years, with the state’s right-leaning high court and legislature in frequent battles with the administration of Democratic Governor Tony Evers. Evers, who is running for reelection in November, vetoed several bills restricting absentee voting in 2021. Republicans in the legislature, meanwhile, have pushed the WEC to enact formal rules regarding drop boxes. Once formalized, the rules could be killed. 

The state also underwent two competing audits of its 2020 elections, one led by the Joint Legislative Audit Committee and another by former state Supreme Court Justice Michael Gableman. Neither found evidence of widespread fraud. 

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