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UPDATED

Election integrity question seeks higher court

By M.D. Kittle

MADISON — The Wisconsin Institute for Law & Liberty (WILL) has asked the Wisconsin Supreme Court to hear a key elections law case, a move that would bypass a liberal appeals court that recently ordered absentee ballot drop boxes may be used in next month’s primary election.

The lawsuit filed by WILL, Teigen v. Wisconsin Elections Commission (WEC), seeks to determine the legal status of drop boxes and ballot harvesting in Wisconsin. The Madison-based District IV Court of Appeals currently has the case and on Monday issued a temporary stay on a Waukesha Circuit Court judge’s decision declaring the Wisconsin Election Commission guidance providing for absentee ballot drop boxes is illegal.

“Wisconsin voters, candidates, and election officials deserve certainty on the legal methods to cast an absentee ballot. We are hopeful the Wisconsin Supreme Court will hear this urgent matter,” said Rick Esenberg, president and general counsel of WILL, a Milwaukee-based public interest law firm.

WILL filed the original lawsuit on behalf of two Waukesha County voters in June 2021 challenging the legal status of absentee ballot drop boxes after WEC issued guidance to clerks in the 2020 presidential election year. The Elections Commission encouraged the use of absentee ballot drop boxes, and telling voters that others can return their ballot for them.

The advice 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.”

WILL argues there are just two legal ways in Wisconsin to submit an absentee ballot. 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.”

Last month, Waukesha County Circuit Court Judge Michael Bohren issued a summary judgment decision that held that WEC’s guidance on absentee ballot drop boxes violates state law, and/or should have been adopted through the legislative rule-making process. And Bohren made clear that state law provides just two legal methods to cast an absentee ballot: through the mail or in-person at a clerk’s office.

This decision was appealed to the Court of Appeals, which issued the stay through Feb. 15. The court, arguably the most liberal in the state, agreed with the Elections Commission that ending the use of drop boxes now would create uncertainty surrounding the absentee votes already delivered to the boxes.

“(A)t this stage of the election process, there is significant uncertainty as to whether these votes would be counted,” the court wrote in its decision.

The widespread use of absentee ballot drop boxes, particularly unmanned boxes, and ballot-harvesting events like Madison’s Democracy in the Park during the lead up to the hotly contested presidential election, are among a long list of election integrity concerns confronting Wisconsin voters.

A state audit conducted last year shows several instances in which WEC and local election officials twisted or broke election law under the defense of the pandemic.

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