MADISON — Election integrity got a much-needed victory on Friday, when the Wisconsin Supreme Court delivered a 4-3 ruling finding the use of unstaffed absentee ballot drop boxes illegal.
The drop boxes, widely used in Wisconsin’s contentious 2020 presidential election, raised questions and concerns about the integrity of a flood of mail-in and dropped-off ballots amid a pandemic. They also were clearly a violation of state law, according to the majority opinion written by Justice Rebecca Grassl Bradley.
“Only the legislature may permit absentee voting via ballot drop boxes. WEC (Wisconsin Election Commission) cannot,” she wrote. “Ballot drop boxes appear nowhere in the detailed statutory system for absentee voting. WEC’s authorization of ballot drop boxes was unlawful…”
WEC, as it has often done, pushed aside the law in offering guidance to local election clerks.
“A drop box is a secure, locked structure operated by local election officials. Voters may deposit their ballot in a drop box at any time after they receive it in the mail up to the time of the last ballot collection Election Day. Ballot drop boxes can be staffed or unstaffed, temporary or permanent,” the commission wrote in 2020.
The security of the unstaffed boxes have long been in doubt, particularly so after the release of video catching individuals stuffing some absentee ballot boxes in Democrat bastions like Milwaukee.
WEC also advised election officials that “[a] family member or another person may . . . return the ballot on behalf of the voter,” (i.e., an agent of the voter may place the voter’s absentee ballot in a drop box.).
The Wisconsin Institute for Law & Liberty, representing two Wisconsin voters, took WEC to court. They won at the circuit level. WEC took the case to an appeals court, but the Supreme Court agreed to intervene, bypassing the lower court.
Bradley’s opinion asserts the bureaucrats at WEC should have known the law, and applied it. They failed to do so, as they did in several other election-related guidance.
“We hold the documents (WEC’s guidance) are invalid because ballot drop boxes are illegal under Wisconsin statutes. An absentee ballot must be returned by mail or the voter must personally deliver it to the municipal clerk at the clerk’s office or a designated alternate site,” the justice wrote.
The majority opinion is in line with Legislative Audit Bureau report on election administration that found there is no authorization for absentee ballot drop boxes in state law.
Rick Esenberg, president and general counsel of the Wisconsin Institute for Law & Liberty said the decision provides important 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,” he said.
Justice Ann Walsh Bradley, wrote the dissenting opinion for the three liberals on the court. She spent much of her rebuttal attacking the conservative majority, alleging the opinion “blithely and erroneously seeks to sow distrust in the administration of our elections.” It’s just “another barrier” for voters to exercise their “sacred right.”
But the constitutional right doesn’t eschew voter integrity. State law clearly states, “voting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place.” And there are just two ways under the law Wisconsin voters may submit an absentee ballot. “The envelope (containing the ballot) shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.” It doesn’t say anything about standalone drop boxes, and it doesn’t permit them even in times of pandemics.
State Sen. Duey Stroebel (R-Cedarburg), who has authored several election integrity bills vetoed by Gov. Tony Evers, said he has watched over the past two years “an exhausting array” of activist local officials, WEC, Democrat colleagues and media commentators insist the use of drop boxes is perfectly legal. Anyone who disagreed was attacking democracy, according to the liberals.
“This ruling vindicates all of my colleagues and constituents who have been pleading for their officials to address this issue,” Stroebel said.