Wisconsin Supreme Court Takes WILL Challenge to Absentee Ballot Drop Boxes

Wisconsin Supreme Court takes WILL challenge to hear drop boxes, ballot harvesting

The News: 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. The court did not block a stay, issued by the Court of Appeals, of a recent Waukesha County Circuit Court decision to ban absentee ballot drop boxes and ballot harvesting. The stay will remain in place through the February 15, primary election.

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.”

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, and/or should have been adopted through the rulemaking process in Chapter 227. Further, 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.

This 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.

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