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A Wisconsin judge rules absentee ballot drop boxes are not allowed under state law

Residents drop mail-in ballots in an official ballot box outside of a Milwaukee library on Oct. 20, 2020.
Scott Olson
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Getty Images
Residents drop mail-in ballots in an official ballot box outside of a Milwaukee library on Oct. 20, 2020.

A Waukesha County judge has ruled that absentee ballot drop boxes are not allowed under Wisconsin law, a ruling that could potentially remove an option for voting ahead of the state's crucial midterm elections.

Ruling from the bench Thursday, Circuit Court Judge Michael Bohren ordered the Wisconsin Elections Commission to rescind its guidance to clerks on how to use the drop boxes, saying the WEC had exceeded its authority when it issued the recommendations.

"In looking at the statutes, there is no specific authorization for drop boxes," Bohren said.

Bohren's ruling sided with the conservative Wisconsin Institute for Law and Liberty in its lawsuit against the commission. The ruling is all but certain to be appealed.

The Elections Commission issued the guidance in 2020, first in March and then again in August in the run-up to Wisconsin's presidential election. The move came as more and more residents turned to absentee voting during the COVID-19 pandemic.

The commission's attorney, Assistant Attorney General Stephen Kilpatrick, argued in court that the documents were meant to be advice to local clerks, who run elections.

"These memos are guidance documents because they guide local election officials," Kilpatrick said. "They do not order them to do anything."

But WILL attorney Luke Berg argued that because there is no state law specifically allowing for drop boxes, there is no legal standard for what form they should take.

"A shoebox on a bench in a park would be legal for collecting ballots," Berg said. "Now, that's absurd, of course. But that's the logical consequence of the position that the commission is taking."

Judge Bohren agreed, noting that while the Elections Commission's guidance went into great detail on the construction and placement of drop boxes, the law did not allow them.

"All of that is good and nice, but there's no authority to do it," Bohren said.

Bohren called the commission's memo "a major policy decision that alter[s] how our absentee ballot process operates" and said it was broad enough that it should have been issued as an administrative rule, which would require the Legislature's approval.

Bohren said he was giving the Elections Commission until Jan. 27 to rescind its drop box guidance to clerks. The commission or other parties to the case could potentially appeal the case before that happens.

"Staff and WEC commissioners plan to review the court's order and consult with legal counsel in the coming days," said Wisconsin Elections Commission spokesperson Riley Vetterkind.

The case is one of several filed by Republicans and their allies in an attempt to change the rules for voting headed into the 2022 election. Bohren's ruling comes just days after GOP lawmakers on the Legislature's Joint Committee for the Review of Administrative Rules ordered the Elections Commission to reissue its ballot box guidance as an emergency rule, which would give GOP lawmakers the power to block it.

While drop boxes have become one of many flashpoints following the November 2020 presidential election, there was a time in the not-too-distant past when they weren't considered controversial.

For example, a Sept. 25, 2020, letter from an attorney for Republican legislative leaders explicitly endorsed the use of drop boxes.

"We wholeheartedly support voters' use of any of these convenient, secure, and expressly authorized absentee-ballot-return methods," wrote attorney Misha Tseytlin representing Assembly Speaker Robin Vos and then-Senate Majority Leader Scott Fitzgerald.

Should this case find its way to the Wisconsin Supreme Court, all eyes will be on conservative Justice Brian Hagedorn, the court's swing vote. Hagedorn ruled against former President Donald Trump and his allies in multiple lawsuits seeking to overturn Wisconsin's 2020 presidential election.

Copyright 2022 Wisconsin Public Radio

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Shawn Johnson covers the State Capitol for Wisconsin Public Radio. Shawn joined the network in 2004. Prior to that he worked for WUIS-FM, a public radio station in Springfield, Illinois. There, Shawn reported on the Illinois legislature. He also managed the station's western Illinois bureau, where he produced features on issues facing rural residents. He previously worked as an Assistant Producer for WBBM-AM radio in Chicago.