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Businessman files lawsuit challenging ballot drop boxes, other election practices in Wisconsin Supreme Court

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Ballot Boxes

An official absentee ballot collection box located outside of Madison Fire Department Station No. 4 on Monroe Street.

A conservative Wisconsin businessman has filed another lawsuit this month directly with the Wisconsin Supreme Court, this time challenging the use of absentee ballot drop boxes and other practices used in November’s presidential election.

Jere Fabick, a prominent Republican donor and president of Fabick Cat, the Caterpillar equipment and engine dealer, appealed directly to the state’s high court this week to stop cities and towns from using absentee ballot drop boxes as well as filling in missing witness address information on absentee ballots.

Fabick also wants the court to deem illegal the practice of accepting the return of absentee ballots from individuals other than the electors themselves.

Those practices were used widely by cities and towns during the November election and had been cleared by the Wisconsin Elections Commission, which oversees elections administered by thousands of Wisconsin cities and towns. The practices were heavily scrutinized both before and after the November election, and were also included in lawsuits filed with state and federal courts by former President Donald Trump and others challenging President Joe Biden’s win in the state.

The cases were ultimately unsuccessful in overturning Trump’s election loss. Fabick’s new lawsuit seeks to block the ballot drop boxes and the other practices he challenges in future elections, but the case does not seek to have Trump’s loss reversed.

In the lawsuit, Fabick’s attorneys say the elections practices being challenged in the suit have not been authorized by state law, and that the WEC and certain municipalities, particularly the city of Madison and the city of Milwaukee, overstepped state law.

“The State Legislature … has expressly forbidden such practices,” attorneys wrote. “And since these practices are unlawful, votes cast using these practices impermissibly dilute the lawfully cast votes of those Wisconsin voters who follow the statutory requirements.”

The Wisconsin Supreme Court on Wednesday ordered responses in the case to be filed by March 30, though the court declined to handle the case expeditiously.

Witness info

One of the issues the lawsuit takes aim at is the instructions from the state elections commission in October that municipal clerks could fill in missing witness address information on absentee ballots if they could “reasonably discern” the information on their own. Such instances would include if the clerk has personal knowledge that the witness lives at the same address as the voter; if the clerk has personal knowledge of the witness’ address; or the clerk is otherwise able to discern the address from available lists or databases.

The commission is controlled by a board composed of three Republicans and three Democrats.

The lawsuit states Milwaukee is actively filling out missing address information. State law sets forth a procedure for fixing missing absentee ballot information that allows for the ballot to be returned to the elector.

Wisconsin Supreme Court Chief Justice Patience Roggensack argued in Trump’s election case that state law does not allow for clerks to fill in missing absentee ballot information, a provision Trump challenged, but a majority of justices declined to side with her.

The law also states absentee ballots whose envelopes are missing the address of a witness “may not be counted” (though the law does not say such ballots “shall” not be counted).

The lawsuit additionally targets what it is characterizing as “ballot harvesting,” which in this instance refers to third parties potentially requesting and/or returning an absentee ballot for another elector. The lawsuit argues that state law provides for only a couple of specific exceptions for residents of nursing homes and hospital patients, and that absentee ballots should otherwise be mailed by the elector or delivered in person by the elector.

Drop boxes

Finally, the lawsuit challenges absentee ballot drop boxes, an increasingly common option for Wisconsin voters to securely return their absentee ballots amid a surge in such ballots during the COVID-19 pandemic. The option was scrutinized by conservatives after the November election and was widely used in Madison and Milwaukee, as well as across the state.

The elections commission authorized the use of ballot drop boxes as long as local clerks maintained they were locked and secure, can be monitored for security purposes and are regularly emptied. Municipalities are continuing the use of drop boxes, with the city of Madison operating at least 15 for the upcoming April election, according to the lawsuit.

The lawsuit contends drop boxes are illegal because the option isn’t outlined in state law, which provides such ballots “shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.”

Despite various lawsuits, state and local officials have so far maintained Wisconsin’s November election was run according to the law.

Madison Mayor Satya Rhodes-Conway slammed the lawsuit.

“Some in the Wisconsin Legislature would like us to rip out our secure voter drop boxes,” Rhodes-Conway said in a statement. “Now, big DC law firms are coming for them too. Let’s call this what it is, voter suppression, plain and simple. We will fight this action vigorously in the courts.”

Representing Fabick on his lawsuit are David Thompson and Peter Patterson of the firm Cooper & Kirk in Washington, D.C., as well as Matthew Fernholz of the Waukesha firm Cramer, Multhauf & Hammes.

Representatives of the WEC and city of Milwaukee declined or didn’t respond to requests for comment.

Editor's note: This story was updated to reflect that Fabick has not previously challenged Wisconsin's election procedures in court.

6 lives disrupted: How COVID-19 changed Madison

The torrent of disruption to daily life over the past year has been inescapable.

Calendar squares filled with weddings and events cleared. Vacations vanished. Schools shuttered and hand sanitizer was in short supply. We learned new words, like social distancing, herd immunity and doomscrolling. 

COVID-19 affected every person, every family. It's taken nearly 6,500 Wisconsinites from us, including 278 in Dane County.

Here are six stories from people whose lives and jobs changed over the past year.

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“Reporting the death counts out day after day was draining,” she said. “It felt like I was announcing a funeral every day.”

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"I was getting my work done from 9 p.m. to 3 a.m. every day," she said.

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Rev. Marcus Allen knew what bringing everyone together could do for their spiritual and mental health. But each time he considered reopening the church, COVID-19 cases surged.

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"We’re used to taking whatever comes through the door," said nurse Maria Hanson, who started journaling about the pandemic soon after treating the patient.

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"It’s a risk vs. reward thing and I risk my life to save others," said Brandon Jones, who always worried about bringing the virus home to his wife and two kids.

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“Usually a funeral is a major step in understanding that a life was lived and the person is now gone,” he said. “If families don’t get that, it’s just really hard.”


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Related to this story

The Wisconsin Supreme Court declined to hear a lawsuit, in a 4-3 decision Friday, brought by a conservative businessman against the Wisconsin Elections Commission in an effort to halt the use of absentee ballot boxes in cities and towns across the state in future elections.

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