The Wisconsin Supreme Court’s new liberal majority overturned a ruling that banned most ballot drop boxes, clearing the way for election officials to resume their use in battleground states by November.
In July 2022, the state Supreme Court, then dominated by a conservative majority, ruled that absentee ballot drop boxes, which were widely used in the 2020 election, were not permitted by state law and therefore Wisconsin Elections Commission (WEC) guidelines encouraging their use were unlawful.
The case, known as Teigen v. Wisconsin State Board of Elections, challenged a state law that required voters to return their absentee ballot “to the city clerk” in one of two ways: by mailing an envelope or by bringing it in person to the city clerk. The court ruled that state law does not allow for off-site, unmanned ballot drop boxes, which can only be placed at local board of elections offices and cannot be returned in person by non-voters.
In a 4-3 decision on Friday, the state high court overturned the policy.
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A poll worker sorts through early and absentee ballots at Kenosha City Hall on Election Day in Kenosha, Wisconsin, November 3, 2020. (AP Photo/Wong Mei-ye, File)
Justice Anna Walsh Bradley, one of the Supreme Court’s four liberal justices, wrote the majority opinion, arguing that state law makes no distinction between whether ballots are delivered to an inanimate object, such as a drop box located by a city clerk, or to the city clerk herself.
“Given this, the question arises as to whether delivery to a drop box constitutes a delivery ‘to the city clerk’ within the meaning of Wisconsin Code § 6.87(4)(b)1,” the majority wrote. “We conclude that it does. Drop boxes are installed, maintained, secured, and emptied by the city clerk. This is true even if the drop box is located somewhere other than the city clerk’s office. In analysis, the statute does not specify where the ballots must be returned, but only requires that they be delivered to a location the city clerk designates in his or her discretion.”
All three conservative justices dissented on Friday, accusing the majority of politically motivated “activism.”
“Bitter partisan politics permeates our nation, exacerbated by a lack of institutional trust,” Justice Rebecca Bradley wrote in the minority opinion. “The legitimacy of our elections remains in question, with each side accusing the other of ‘election interference,’ ‘threats to our democracy,’ and actions that threaten the very foundation of our constitutional republic. The majority’s decision only adds fuel to the fires of doubt.”
“Whatever may be said about the majority’s decision, it is not the result of an impartial, principled judgment,” the dissents said. “While the majority seeks to frame its disagreement with Ms. Teigen as a legal one, the truth is clear: the majority disagrees with the decision as a matter of policy and politics, not law.”
A resident drops off their mail-in ballot at an official ballot box outside the Tippecanoe Branch Library in Milwaukee on October 20, 2020. (Scott Olson/Getty Images)
“The majority believes that the use of drop boxes is good policy and helps the political party it supports,” the minority continued. “Judge Teigen upheld the historical meaning of Wisconsin Code § 6.87(4)(b)1, which prohibits the use of unattended drop boxes off-site. The majority overruled Judge Teigen in this case not because it was legally incorrect, but because the majority found it politically expedient. The majority’s action marks another victory of political power over legal principle before this Court.”
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With the victory of Democratic-backed candidate Janet Protaswiec, the Wisconsin Supreme Court has been placed in liberal control by a 4-3 majority in April 2023. Seizing the opportunity, progressive voter mobilization group Priorities USA asked the Supreme Court in February to reconsider its July 2022 ruling. The justices announced in March that they would reconsider the drop box ban but not other parts of the case.
The move angered the Supreme Court’s conservative wing, who accused liberals of tilting the ballot box in favor of Democrats in this fall’s election. Wisconsin’s Democratic governor, Tony Evers, asked the Supreme Court in April to again allow ballot drop boxes. Republicans who control the Wisconsin Legislature also intervened in the case, arguing the court should stay away from the 2022 decision.
Wisconsin is expected to be a key battleground state again after President Biden narrowly won it in 2020 and President Donald Trump narrowly won it in 2016.
An elections worker places completed ballots into a ballot box inside City Hall during the first day of in-person early voting in Kenosha, Wisconsin, on October 20, 2020. (Kamil Krzaczynski/AFP via Getty Images)
Trump and Republicans have argued that ballot drop boxes facilitate fraud. Republican National Committee Chairman Michael Whatley joined in Friday’s ruling, saying in a statement that “the Supreme Court’s new liberal majority has overturned this recent precedent, paving the way for ballot drop boxes to be installed across states just months before the presidential election.”
“The Supreme Court issued this decision after needlessly speeding up litigation in order to issue this ruling before the election,” Whatley said. “Make no mistake: this partisan decision, handed down by a partisan Supreme Court, gives Democrats a green light to dismantle election security measures and invite election fraud. The Republican National Committee’s unprecedented election integrity operation will continue to fight to ensure that ballot box security measures are adopted and implemented.”
County Clerk Scott McDonnell, who oversees elections in Dane County, Wisconsin’s most Democratic, argued that the drop boxes would make the election process more convenient and easier for rural and disabled voters and help reduce the number of ballots that arrive too late after Election Day and can’t be counted.
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“Secure drop boxes provide a convenient alternative to mailing your absentee ballot or returning it in person to an elections clerk,” McDonnell said in a statement. “Drop boxes are a commonsense tool that Dane County has safely and securely used for years, even prior to the 2022 ban.”
“Installing ballot drop boxes for the August and November 2024 elections will increase citizen participation in our democracy,” he added.
The Associated Press contributed to this report.
