The Wisconsin Institute for Law & Liberty (WILL) has filed a lawsuit challenging the legal status and advice from the Wisconsin Elections Commission (WEC) on the use of ballot drop boxes.
WILL, which filed the complaint in Waukesha County Circuit Court on behalf of two Waukesha County voters, is asking the court for a declaratory judgment that makes clear that there are just two legal ways to cast an absentee ballot in Wisconsin: through the U.S. mail or delivered in person to the municipal clerk.
The Election Commission’s guidance effectively opened the door for vote harvesting.
“Wisconsin voters deserve certainty that elections are conducted fairly and in accordance with state law. But the Wisconsin Elections Commission is giving advice to clerks that is contrary to the law, putting the ballots of countless voters at risk,” said Rick Esenberg, president and general counsel of the Milwaukee-based public interest law firm.
Absentee ballot drop boxes were used widely during Wisconsin elections in 2020. The Wisconsin Elections Commission (WEC) issued memos to Wisconsin clerks in March and August of 2020 encouraging their use, stating that absentee ballots do not need to be mailed by the voter or delivered by the voter, in person, to the municipal clerk, but instead could be dropped into a drop box. According to WEC, ballot drop boxes can be unstaffed, temporary, or permanent.
This 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.” 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.”
An unstaffed, unsupervised absentee ballot drop box does not meet either of these legal options. And it raises significant concerns that elections are not being conducted legally and that Wisconsin voters will not have certainty that their votes will be counted if cast in this manner.
The March 31, 2020 memo from WEC states third-party individuals other than the voter may return a voter’s absentee ballot. Specifically, the memo says that “A family member or another person.” That’s in defiance of state law, the complaint argues.
The Wisconsin Supreme Court in Trump v. Biden did not weigh in on the legal status of absentee ballot drop boxes due to the timing of the lawsuit – after the November 2020 election. And a petition for original action to the Wisconsin Supreme Court asking for a review of the legal status of absentee ballot drop boxes was recently denied on procedural grounds. Nevertheless, the Court’s denial suggested the petition raised “novel and unresolved questions” that should be resolved in a proper case.