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

Type of Case: Rule of Law

Court: Wisconsin Supreme Court

Case Number: 

Filed On: June 28, 2021

Current Status: On July 8, 2022, Wisconsin Supreme Court held that absentee ballot drop boxes, used widely in the 2020 election, have no statutory authorization and Wisconsin Elections Commission (WEC) guidance encouraging their use was unlawful.

Press Releases

WISCONSIN SUPREME COURT HOLDS ABSENTEE BALLOT DROP BOXES UNLAWFUL

July 8, 2022 | The Wisconsin Supreme Court held that absentee ballot drop boxes, used widely in the 2020 election, have no statutory authorization and Wisconsin Elections Commission (WEC) guidance encouraging their use was unlawful.

WILL TO ARGUE CHALLENGE TO DROP BOXES, BALLOT HARVESTING AT WISCONSIN SUPREME COURT

April 13, 2022 | Wisconsin Institute for Law & Liberty (WILL) President and General Counsel, Rick Esenberg, will participate in Wisconsin Supreme Court oral arguments, Wednesday, in Teigen v. Wisconsin Elections Commission (WEC), a case to determine the legal status of absentee ballot drop boxes and ballot harvesting.

WISCONSIN SUPREME COURT TAKES WILL CHALLENGE TO ABSENTEE BALLOT DROP BOXES

January 28, 2022 | The Wisconsin Supreme Court agreed to hear Teigen v Wisconsin Elections Commission (WEC), a case brought by the Wisconsin Institute for Law & Liberty (WILL) to determine the legal status of absentee ballot drop boxes and ballot harvesting.

WILL ASKS WISCONSIN SUPREME COURT TO TAKE CHALLENGE TO ABSENTEE BALLOT DROP BOXES

January 26, 2022 | WILL filed an emergency motion to bypass, asking the Wisconsin Supreme Court to hear Teigen v. Wisconsin Elections Commission (WEC), a case to determine the legal status of absentee ballot drop boxes and ballot harvesting. The case is currently on appeal at the Court of Appeals, District IV, which issued a temporary stay of a Waukesha Circuit Court decision that will allow the use of absentee ballot drop boxes for the February 15 primary election.

WAUKESHA JUDGE RULES ABSENTEE BALLOT DROP BOXES, BALLOT HARVESTING ILLEGAL UNDER STATE LAW

January 13, 2022 | Waukesha County Circuit Court Judge Michael Bohren issued a summary judgment decision, in court, that absentee ballot drop boxes and ballot harvesting are not permitted in state law. Judge Bohren also ruled that the Wisconsin Elections Commission (WEC) guidance documents on absentee ballot drop boxes, issued in 2020, should have gone through the rules process.

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: WILL filed a lawsuit on behalf of two Waukesha County voters in June 2021 challenging the legal status of absentee ballot drop boxes after WEC issued unlawful guidance to clerks, in 2020, encouraging the use of absentee ballot drop boxes, and telling voters that others can return their ballot for them.

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 October 2021 Legislative Audit Bureau (LAB) report on election administration confirmed there is no authorization for absentee ballot drop boxes in state law. And WILL’s 2020 Election Review said, “the widespread adoption of absentee ballot drop boxes, encouraged by the Wisconsin Elections Commission (WEC), runs afoul of state law requirements for the collection of absentee ballots.”

On January 13, Waukesha County Circuit Court Judge Michael Bohren issued a summary judgment decision that held that WEC’s guidance on absentee ballot drop boxes violates state law. Judge Bohren further stated the guidance should have been adopted through the rulemaking process in Chapter 227. Judge Bohren made clear that state law provides just two legal methods to cast an absentee ballot: through the mail or in-person at a clerk’s office.

Judge Bohren’s decision was appealed to the Court of Appeals where a stay was issued on January 24. WILL filed an emergency motion to bypass and emergency petition to vacate a stay to the Wisconsin Supreme Court on January 26. The Wisconsin Supreme Court took the case and WILL President and General Counsel, Rick Esenberg, participated in oral arguments in April.

Current Status: The Wisconsin Supreme Court held that absentee ballot drop boxes, used widely in the 2020 election, have no statutory authorization and Wisconsin Elections Commission (WEC) guidance encouraging their use was unlawful. 

The majority decision, authored by Justice Rebecca Bradley, said, “Only the legislature may permit absentee voting via ballot drop boxes. WEC cannot. Ballot drop boxes appear nowhere in the detailed statutory system for absentee voting. WEC’s authorization of ballot drop boxes was unlawful…”

 

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