MADISON, Wis. (CN) — The Wisconsin Supreme Court on Friday declined to extend, through an upcoming April election, a stay of a recent lower court order banning the use of absentee ballot drop boxes and the return of an absentee ballot by someone other than the voter.
The decision casts further doubt on these election practices in future Wisconsin elections, including consequential contests for a U.S. Senate seat and the governorship this fall.
Taxpayers represented by conservative nonprofit law firm Wisconsin Institute for Law & Liberty (WILL) sued in June 2021 over guidance memos the Wisconsin Elections Commission (WEC) issued in March and August 2020 allowing absentee ballots to be returned to unstaffed drop boxes in a voter’s municipality instead of being mailed or returned to a clerk and allowing third parties to return a voter’s absentee ballot.
Wisconsin state law is silent on the explicit legality of drop boxes. The voting method exploded as a safe absentee alternative for voters amid the coronavirus pandemic, particularly during the 2020 general election, during which more than 2 million absentee ballots were cast throughout the state.
Opponents of drop boxes say state law permits only two legal ways to vote absentee in Wisconsin: either a voter can mail the ballot themselves, or they can return it to the municipal clerk’s office themselves. Any other method involving drop boxes or another person returning someone else’s ballot is illegal and invites fraud, they say, though there is little to no evidence to support the latter claim.
Waukesha County Circuit Court Judge Michael Bohren agreed with WILL on Jan. 13 and barred both practices in any future elections — including a Feb. 15 primary that was a little more than a month away at the time — on the basis that state statutes were clear that an elector must personally be involved in casting their ballot, regardless of informal rules issued to clerks by the WEC.
Bohren refused to pause his ban about a week later, feeling the stay would not cause confusion among voters and clerks and that the WEC had plenty of time to reverse course on their guidance before upcoming elections.
But the Wisconsin Court of Appeals felt differently, and three days later it granted a stay requested by groups including Disability Rights Wisconsin and the League of Women Voters of Wisconsin, leaving drop boxes in place for the Feb. 15 primary.
WILL asked the state supreme court to reverse the appellate court, but the high court narrowly decided 4-3 not to overturn the stay, in part because absentee voting for the Feb. 15 election was already well underway.
Conservative Justice Brian Hagedorn broke with the court’s conservative majority and sided with its three-judge liberal bloc in that Jan. 28 order.
However, Hagedorn rejoined his right-leaning colleagues on Friday in nixing drop boxes and letting another person return an absentee ballot not their own for a local general election on April 5, handing a loss to the same interest groups who fought for the previous stay.
In the three-page unsigned 4-3 order on Friday, the Wisconsin Supreme Court majority said because the timetable is more relaxed, and because those asking for a stay had not shown the interest groups, the voters they represent, or the public at large will suffer irreparable or substantial harm, a stay through the April 5 election was unwarranted.
The record, the justices said, “indicates that the [WEC] can comply with the circuit court’s order so as to ameliorate concerns about voter confusion and election administration before the April 5, 2022, election commences. The need for additional relief in the form of an extended stay has not been established.”
Justice Ann Walsh Bradley laced into the majority in a short dissent, joined by Justices Rebecca Dallet and Jill Karofsky.
“Once again, a majority of this court makes it more difficult to vote. With apparent disregard for the confusion it is causing, the majority provides next to no notice to municipal clerks, changing procedures at the eleventh hour and applying different procedures from those that applied to the primary in the very same election cycle,” Bradley wrote.
Bradley found it regrettable that “municipal clerks will likely feel a sense of whiplash,” considering that procedures for drop boxes and the return of absentee ballots by a third party have been in effect for at least two years and are now undone with a single sentence of rationale from the majority, though both may be valid again within a few months once the court rules on the merits of the case.
The majority’s order, Bradley said, will cause confusion and harm for voters and clerks.
“But the greatest harm of the majority’s misstep may be the undermining of the election process itself. Indeed, the only parties not harmed by today’s decision are those who would cast meritless doubt on our elections,” the justice concluded.
Representatives with WILL, the WEC and Law Forward, a progressive Madison-based firm which represented intervening interest groups in the drop boxes lawsuit, could not be immediately reached for comment on the high court’s decision after business hours on Friday.
The state Supreme Court has no arguments or other proceedings currently scheduled in WILL’s lawsuit. The court declined last week to take up a similar action from former Republican Lieutenant Governor Rebecca Kleefisch, who is running against Democratic Governor Tony Evers for the governorship this fall.
Hagedorn voted alongside the high court’s liberals in denying Kleefisch’s lawsuit, drawing a dissent from conservative Justices Patience Roggensack and Rebecca Grassl Bradley, and Chief Justice Annette Ziegler.
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