MADISON — The Wisconsin Supreme Court has rejected the state election regulator’s request that it be allowed to continue breaking state election law on ballot drop boxes.
“Does that make me feel good about winning the case ultimately? It does,” said Rick Esenberg, president and general counsel of the Wisconsin Institute for Law & Liberty (WILL).
The Milwaukee-based public interest law firm sued the Wisconsin Elections Commission on behalf of two Waukesha County voters who charged that WEC broke state law. The agency issued guidance allowing for the use of the hundreds of unattended ballot drop boxes that have popped up around the state during the pandemic.
Waukesha County Circuit Court Michael Bohren agreed WEC’s advice was illegal, further ruling that such guidance should have been adopted through the legislative rule-making process. The liberal District IV Court of Appeals then stayed the lower court’s ruling, allowing the drop boxes to be used for today’s primary elections to avoid voter confusion.
The Supreme Court agreed to take the case under an emergency motion, but on a 4-3 decision decided to allow the drop boxes to be used for the February primary elections. Justice Brian Hagedorn, who was elected to the bench as a conservative but has proved to be a “swing vote” on the closely divided court, sided with the three liberal justices in the decision.
But on Friday, Hagedorn joined the conservatives in rejecting a motion from WEC and liberal voting groups to extend the stay — and allow the absentee ballot drop boxes — through the spring election in April. The court will issue a final ruling on whether WEC violated the law, but Esenberg doesn’t expect that decision to be handed down until after April’s election.
WEC’s guidance, first issued in 2020, 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.”
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.”
The lawsuit also alleges WEC errantly allowed ballot harvesting, telling voters that others can return their ballot for them. That would include political groups. Bohren ruled that guidance also broke state elections law.
Liberal voter rights groups complained that eliminating ballot drop boxes and ballot collection would disenfranchise some voters. Liberal Supreme Court Justice Ann Walsh Bradley in the dissenting opinion agreed.
Esenberg said there’s always some argument that some person somewhere will be inconvenienced or have some difficulty voting by some action.
“That might be an argument that the Legislature can pass an exception for that person, but it doesn’t mean the whole system of ballot security should be ignored,” the attorney said.
“We never had drop boxes prior to 2020, and lots of people turned out to vote,” Esenberg added. “I don’t think anybody said we didn’t have democracy in 2018 or 2016 or 2014 or 2012.”