MADISON, Wis. (CN) — Wisconsin voters will no longer be allowed to cast their absentee ballots via remote drop boxes, as the state’s highest judicial body ruled Friday they are not permitted under state law.
The Wisconsin Supreme Court’s 4-3 majority decision is a win for Badger State Republicans fighting tooth-and-nail to ban previously unchallenged modes of absentee voting in the aftermath of Donald Trump’s 2020 general election loss to President Joe Biden, who won Wisconsin by around 21,000 votes.
Many conservatives, in Wisconsin and elsewhere, have spent almost two years eagerly amplifying or tacitly supporting Trump’s false assertion that massive fraud cheated him out of reelection. Wisconsin’s results have been affirmed by a recount Trump demanded, multiple lawsuits in state and federal court, and two independent investigations. Yet another embattled audit spearheaded by former conservative state high court justice Michael Gableman is ongoing but currently paused amid numerous lawsuits.
Absentee voting, including with drop boxes, exploded as an alternative to in-person voting in 2020 due to the Covid-19 pandemic, with 2 million absentee ballots being cast in Wisconsin in that year’s election, many via hundreds of drop boxes around the state.
In June 2021, two taxpayers represented by conservative nonprofit law firm Wisconsin Institute for Law & Liberty (WILL)—a group which conducted one of the two completed reviews of the 2020 election in Wisconsin—sued over guidance memos the Wisconsin Elections Commission (WEC) issued in 2020 over absentee voting. The memos allowed absentee ballots to be returned to drop boxes in a voter’s municipality and allowed a third-party agent to return a voter’s absentee ballot.
Waukesha County Circuit Court Judge Michael Bohren in January agreed with WILL and barred both practices in any future elections, saying WEC exceeded its authority with memos that amount to unpromulgated rules and drop boxes are not enumerated in state law. The Wisconsin Supreme Court upheld an appellate court stay of that decision for a Feb. 15 primary, then affirmed the ban for other upcoming elections.
Hours of arguments took place before the high court on April 13, during which a bevvy of interest groups and partisans essentially needled over what the silence in state law about drop boxes means.
With a lead opinion from conservative Justice Rebecca Grassl Bradley, the high court answered unequivocally on Friday: the law doesn’t say you can, so you can’t.
“Nothing in the statutory language detailing the procedures by which absentee ballots may be cast mentions drop boxes or anything like them,” Grassl Bradley said, dispensing with proponents’ argument that drop boxes are allowed because no statute expressly prohibits them.
“WEC’s staff may have been trying to make voting as easy as possible during the pandemic, but whatever their motivations, WEC must follow Wisconsin statutes. Good intentions never override the law,” the justice said, ruling that absentee ballots must be returned by mail or the voter must personally hand-deliver it to the clerk’s office or another designated site.
The majority opinion stopped short of deciding whether it’s legal for a voter’s agent to put their absentee ballot in the mail, so that will still be allowed for now. Critics have condemned this and similar practices as ballot harvesting that invites fraud, though there is no evidence of that in Wisconsin. Friday's ruling also still technically allows drop boxes if they are in an election clerk's office.
Wisconsin Governor Tony Evers, a Democrat, blasted the ruling in a statement Friday.
“Today’s decision is another in a long line of Wisconsin Republicans’ successes to make it harder for Wisconsinites to exercise their right to vote, to undermine our free, fair, and secure elections, and to threaten our democracy," Evers said.
WILL president and general counsel Rick Esenberg welcomed the high court’s decision, saying that now “Wisconsin voters can have confidence that state law, not guidance from the Wisconsin Elections Commission, has the final word on how Wisconsin elections are conducted.”
Wisconsin's next election is the Aug. 9 primary, featuring races for governor and a U.S. Senate seat.
Grassl Bradley’s lead opinion featured sinister insinuations about the illegitimacy of unlawful elections like those perpetrated by dictators such as former Iraqi president Saddam Hussein and current North Korean leader Kim Jong-un, and she said “the illegality of these drop boxes weakens the people’s faith that the election produced an outcome reflective of their will.”
“If the right to vote is to have any meaning at all, elections must be conducted according to law. Throughout history, tyrants have claimed electoral victory via elections conducted in violation of governing law,” she said.
Grassl Bradley was joined in the majority by Chief Justice Annette Ziegler and justices Patience Roggensack and Brian Hagedorn, all conservatives. Roggensack brought a concurring opinion saying she believes that only the elector should be able to mail their absentee ballot.
Grassl Bradley filed a concurrence quoting William Shakespeare and Kanye West and urging the high court to overrule its ruling from December 2020 in one of Trump’s failed challenges to Wisconsin’s election results, which she said wrongfully gave WEC guidance the force of law.
The court’s liberal minority, led by Justice Ann Walsh Bradley and joined by justices Rebecca Dallet and Jill Karofsky, decried the majority for adding barriers to voting and flirting with conspiracy theories that cast doubt on legitimate elections.
Walsh Bradley said “the majority/lead opinion blithely and erroneously seeks to sow distrust in the administration of our elections and through its faulty analysis erects yet another barrier for voters” to exercise their constitutional right to vote, and offered that ballot drop boxes are “a simple and perfectly legal solution to make voting easier, especially in the midst of a global pandemic.”
“The majority/lead opinion’s sky-is-falling rhetoric not only defies the facts, but also is downright dangerous to our democracy. Absent evidence that supports its statements, the majority/lead opinion still lends its imprimatur to efforts to destabilize and delegitimize recent elections,” Walsh Bradley said.
In another concurring opinion, Hagedorn offered that state election law needs to be clearer and emphasized that the supreme court does not write policy but settles questions of law, while conceding that the consequential majority opinion will draw passionate, divided responses.
“Our obligation is to follow the law, which may mean the policy result is undesirable or unpopular. Even so, we must follow the law anyway. To the extent the citizens of Wisconsin wish the law were different, the main remedy is to vote and persuade elected officials to enact different laws. This is the hard work of democracy,” he said.
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