Wisconsin Supreme Court Holds Absentee Ballot Drop Boxes Unlawful

WILL challenged WEC guidance in lawsuit filed in June 2021

The News: 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 Wisconsin Institute for Law & Liberty (WILL) filed the lawsuit on behalf of two Wisconsin voters in June 2021 challenging the legal status of absentee ballot drop boxes after WEC issued guidance in 2020 contrary to state law.

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…”

The Quote: WILL President and General Counsel, Rick Esenberg, said, “This decision provides substantial clarity on the legal status of absentee ballot drop boxes and ballot harvesting. While the question of whether an agent may mail an absentee ballot remains open, 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.”

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.

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Rick Esenberg

Rick Esenberg

President and General Counsel

rick@will-law.org

Luke Berg

Luke Berg

Deputy Counsel

Luke@will-law.org

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