Wisconsin Supreme Court's liberal justices appear poised to flip ballot drop box ban

The Wisconsin Supreme Court’s new liberal majority appears poised to overturn the previous conservative majority’s nearly two-year-old ruling that essentially barred the use of absentee ballot drop boxes in the state.

The state’s high court on Monday heard oral arguments in a case backed by Democratic groups who argue the court improperly ruled in July 2022 that the freestanding, mailbox-like drop boxes — which saw increased use amid the COVID-19 pandemic — could not be used in the state except in clerk’s offices.

The court’s eventual decision could have a considerable impact on Wisconsin’s upcoming Aug. 13 primary and Nov. 5 presidential election. Wisconsin, a state notorious for its razor-thin margins in statewide elections, is once again expected to be among just a handful of states to ultimately decide who wins the White House this fall.

“What if we just got it wrong?” liberal Justice Jill Karofsky asked about the 2022 ruling during the hearing. “What if we made a mistake? Are we now supposed to just perpetuate that mistake into the future?”

That 4-3 ruling ultimately found that nothing in state law allows for the use of absentee ballot drop boxes. State law is silent on the use of secure ballot drop boxes.

Conservative Justice Rebecca Bradley said that while state law guarantees the right to vote, absentee voting is considered a privilege that was granted by the state Legislature and no law has been passed that expressly allows, or bars, the use of drop boxes.

“You are asking this court to recognize somehow in the law that municipal clerks can receive absentee ballots in any fashion that they deem acceptable,” Bradley said.

Liberal Justice Rebecca Dallet argued the primary issue in the case is that the state operates under the general concept that, “when the Legislature writes a statute that things are permitted unless they’re forbidden.”

“There is no way — even though statute books are quite long and there are quite a few of them — that it could possibly ever encompass every tiny little thing that ever existed in any realm, especially in election law when we have a decentralized system of clerks … making hundreds of decisions every single day with respect to elections,” Dallet said.

Misha Tseytlin, attorney for the Republican-controlled Legislature, argued that nothing has changed in the state since the 2022 ruling and the lawsuit only comes now that liberals have gained a majority on the state Supreme Court.

If the ruling is overturned, Tseytlin predicted additional lawsuits on the same issue when the makeup of the state’s high court changes in the future.

“We’re going to be arguing about drop boxes for a third time,” Tseytlin said.

Dallet questioned Tseytlin on previous arguments made by the state Legislature in support of the use of absentee ballot drop boxes, including in 2020 when GOP lawmakers said the boxes were “expressly authorized and lawful.”

“This was not something you were obviously concerned about at all in 2020,” Dallet said.

Tseytlin responded that “no one had raised any legal objections to drop boxes” at that point in time.

Conservative Justice Brian Hagedorn pushed back on the premise of past arguments, asking, “Why does it matter that the Legislature takes a different view of the statute for us to read the statute faithfully?”

‘Unworkable’ ruling

The use of absentee ballot drop boxes became a target of Republicans in recent years due in large part to unfounded claims by former President Donald Trump, who lost the 2020 election in Wisconsin to President Joe Biden by about 21,000 votes.

Speaking at a rally held at the Capitol before the state Supreme Court’s hearing Monday, voting rights advocates called on the court to overturn the 2022 ruling to ensure greater access to voting.

“We’re here today to add our voices to the call for the Supreme Court to move past those baseless lies and suspicions so everyone has the opportunity to participate in our democracy and cast a ballot safely,” former educator and past president of the Wisconsin Education Association Council Mary Bell said.

Under a conservative majority, the state Supreme Court in 2022 ruled that absentee ballots must be delivered by mail or in person to a local clerk’s office or designated alternate site. The 4-3 ruling effectively barred the use of absentee ballot drop boxes, which were used in hundreds of communities across the state during the height of the COVID-19 pandemic.

David Fox, an attorney for national Democratic organization Priorities USA, argued the ruling is “unworkable,” because it “provides too little guidance on what is not permitted for municipal clerks and voters.”

Fox noted that in 2022, after drop boxes had been banned, more than 1,600 absentee ballots were received by local clerks’ offices after Election Day and were not counted. In 2020, when the boxes were in use, fewer than 700 ballots arrived after Election Day. Nearly three times as many people voted absentee in 2020 than in 2022, he added.

New majority

The state’s high court shifted to a liberal majority for the first time in more than a decade last year after Justice Janet Protasiewicz defeated conservative Dan Kelly.

Less than a month before Protasiewicz was sworn in, a national Democratic law firm sued the Wisconsin Elections Commission seeking to overturn the state Supreme Court’s previous ruling.

Priorities USA, which is represented by Elias Law Group, had asked the court to weigh in on three matters: the Wisconsin Supreme Court’s 2022 ruling that unmanned absentee ballot drop boxes are illegal; Wisconsin’s requirement that returned absentee ballots must be accompanied by a valid witness signature; and state law setting an 8 p.m. Election Day deadline for when voters can “cure” or correct errors on their absentee ballots.

The state’s high court said in March it would decide only on the use of absentee ballot drop boxes in Wisconsin.