Teigen v. Wisconsin Elections Commission

Case Name: Teigen v. Wisconsin Elections Commission (WEC)

Type of Case: Rule of Law

Court: Waukesha County Circuit Court

Case Number: 

Filed On: June 28, 2021

Current Status: Lawsuit filed on June 28, 2021

Press Releases

WILL SUES WISCONSIN ELECTIONS COMMISSION CHALLENGING LEGAL STATUS OF BALLOT DROP BOXES

July 28, 2021 | WILL filed a lawsuit in Waukesha County Circuit Court, on behalf of two Waukesha County voters, challenging the legal status and advice from the Wisconsin Elections Commission (WEC) on the use of ballot drop boxes.

The Lawsuit: The Wisconsin Institute for Law & Liberty (WILL) filed a lawsuit in Waukesha County Circuit Court, on behalf of two Waukesha County voters, challenging the legal status and advice from the Wisconsin Elections Commission (WEC) on the use of ballot drop boxes. WILL is asking the court for a declaratory judgment that makes clear that there are just two legal ways to cast an absentee ballot in Wisconsin: through the U.S. mail or delivered in person to the municipal clerk.

Background: Absentee ballot drop boxes were used widely during Wisconsin elections in 2020. The Wisconsin Elections Commission (WEC) issued memos to Wisconsin clerks in March and August of 2020 encouraging their use, stating that absentee ballots do not need to be mailed by the voter or delivered by the voter, in person, to the municipal clerk, but instead could be dropped into a drop box. According to WEC, ballot drop boxes can be unstaffed, temporary, or permanent.

This advice was contrary to state law. Voting is a constitutional right, but state law makes clear that, “voting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place.” There are just two legal ways in Wisconsin to submit an absentee ballot. When voting by absentee ballot, state law says “[t]he envelope [containing the ballot] shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.”

An unstaffed, unsupervised absentee ballot drop box does not meet either of these legal options. And it raises significant concerns that elections are not being conducted legally and that Wisconsin voters will not have certainty that their votes will be counted if cast in this manner.

The Wisconsin Supreme Court in Trump v. Biden did not weigh in on the legal status of absentee ballot drop boxes due to the timing of the lawsuit – after the November 2020 election. And a petition for original action to the Wisconsin Supreme Court asking for a review of the legal status of absentee ballot drop boxes was recently denied in June 2021 on procedural grounds. Nevertheless, the Court’s denial suggested the petition raised “novel and unresolved questions” that should be resolved in a proper case.

Rick Esenberg

Rick Esenberg

President and General Counsel

rick@will-law.org

Brian McGrath

Brian McGrath

Senior Counsel

brian@will-law.org

Luke Berg

Luke Berg

Deputy Counsel

luke@will-law.org

Katherine Spitz

Katherine Spitz

Associate Counsel

kate@will-law.org

CASE DOCUMENTS