Wisconsin Supreme Court new liberal majority reverses ruling that banned most ballot drop boxes in swing state

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The Wisconsin Supreme Court’s new liberal majority reversed a ruling that banned most ballot drop boxes, opening the door for election officials to reinstate their use in the swing state before November.  

In July 2022, the state Supreme Court, then under a conservative majority, held that absentee ballot drop boxes, which were used widely during the 2020 election, were not authorized under state statute and, therefore, the Wisconsin Elections Commission (WEC) guidance encouraging their use was unlawful. 

That case, known as Teigen v. Wisconsin Elections Commission, centered on a state statute that requires an absentee ballot be returned "to the municipal clerk" by one of two ways: by the elector mailing in the envelope or by the elector delivering the ballot in person to the municipal clerk. It upheld that state statute does not allow offsite, unattended drop boxes, and drop boxes could only be placed in local election clerks’ offices and no one other than the voter could return a ballot in person. 

In a 4-3 ruling on Friday, the state's high court reversed course. 

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Poll workers sort out early and absentee ballots at the Kenosha Municipal Building on Election Day, Nov. 3, 2020, in Kenosha, Wisconsin. (AP Photo/Wong Maye-E, File)

Writing for the majority, Justice Anna Walsh Bradley, one of the court’s four liberal justices, argued that the state statute does not make a distinction between whether ballots can be delivered to inanimate objects, such as drop boxes, whose locations are determined by municipal clerks, or to the municipal clerks themselves.  

"Given this, the question then becomes whether delivery to a drop box constitutes delivery ‘to the municipal clerk’ within the meaning of Wis. Stat. § 6.87(4)(b)1," the majority wrote. "We conclude that it does. A drop box is set up, maintained, secured, and emptied by the municipal clerk. This is the case even if the drop box is in a location other than the municipal clerk's office. As analyzed, the statute does not specify a location to which a ballot must be returned and requires only that the ballot be delivered to a location the municipal clerk, within his or her discretion, designates." 

All three conservative justices dissented Friday, accusing the majority of politically motivated "activism." 

"Intense partisan politics saturate our nation, exacerbated by a lack of institutional trust," Justice Rebecca Bradley, who wrote for the minority, said. "The legitimacy of elections continues to be questioned, each side accusing the other of ‘election interference’ and ‘threatening democracy’ or even the very foundation of our constitutional republic. The majority's decision in this case will only fuel the fires of suspicion."    

"Whatever can be said of the majority's decision, it ‘is not the product of neutral, principled judging,’" the dissenters said. "Although the majority attempts to package its disagreements with Teigen as legal, the truth is obvious: The majority disagrees with the decision as a matter of policy and politics, not law."

Residents drop mail-in ballots in an official ballot box outside the Tippecanoe branch library on Oct. 20, 2020, in Milwaukee. (Scott Olson/Getty Images)

"The members of the majority believe using drop boxes is good policy, and one they hope will aid their preferred political party," the minority continued. "Teigen upheld the historical meaning of Wis. Stat. § 6.87(4)(b)1., which bars the use of offsite, unmanned drop boxes. The majority in this case overrules Teigen not because it is legally erroneous, but because the majority finds it politically inconvenient. The majority's activism marks another triumph of political power over legal principle in this court." 

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In April 2023, Democratic-backed candidate Janet Protaswiecz’s victory flipped the Wisconsin state Supreme Court to liberal control under a 4-3 majority. Seeing an opening, Priorities USA, a progressive voter mobilization group, asked the court in February to revisit the July 2022 decision. The justices announced in March they would review the ban on drop boxes but would not consider any other parts of the case. 

The move drew the ire of the court's conservatives, who accused the liberals of trying to give Democrats an advantage this fall. Democratic Wisconsin Gov. Tony Evers in April urged the court to again allow drop boxes. Republicans who control the Wisconsin Legislature also intervened in the case, arguing that the justices should leave the 2022 ruling alone.

Wisconsin again figures to be a crucial swing state after President Biden barely won it in 2020 and Donald Trump narrowly took it in 2016.

An election worker drops a completed ballot into a ballot box inside City Hall on the first day of in-person early voting in Kenosha, Wisconsin, on Oct. 20, 2020. (Kamil Krzaczynski/AFP via Getty Images)

Trump and Republicans have alleged that drop boxes facilitated cheating. Republican National Committee (RNC) Chairman Michael Whatley weighed in on Friday's ruling, arguing in a statement that the "new liberal majority on the Supreme Court overturned this recent precedent and opened the floodgates for drop boxes across the state just months before the presidential election." 

"The Court did this after unnecessarily fast-tracking the case to issue this decision before the election," Whatley said. "Make no mistake: this partisan decision handed down by a partisan Court gives Democrats a green light to dismantle election security safeguards and invite election fraud. The RNC’s unprecedented election integrity operation will continue fighting to ensure drop box safeguards are adopted and implemented." 

Dane County Clerk Scott McDonell, who administers elections in Wisconsin's most Democratic county, argued drop boxes make the election process more convenient and easier for rural and disabled voters and help reduce the number of ballots that arrive after Election Day too late to be counted.

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"Secure drop boxes provide a convenient alternative to mailing absentee ballots or returning them in person to an elections clerk," McDonell said in a statement. "Drop boxes are a common sense tool that Dane County utilized safely and securely for many years prior to the 2022 ban."

"Having drop boxes in place for the 2024 elections in August and November will encourage civic participation in our democracy," he added. 

The Associated Press contributed to this report.