Wisconsin Supreme Court Allows Absentee Ballot Drop Boxes in November Election

by Benjamin Yount

Voters in Wisconsin will once again be able to drop their ballots in drop boxes in the November election.

In the state Supreme Court’s 4-3 ruling Friday, Justice Ann Walsh Bradley wrote in the majority opinion that while nothing in Wisconsin law specifically allows ballot drop boxes, the law does allow voters to leave their ballot with the local clerk’s office as opposed to the local clerk.

And, by way of that, the clerk has discretion to use drop boxes.

“By mandating that an absentee ballot be returned not to the ‘municipal clerk’s office,’ but ‘to the municipal clerk,’ the Legislature disclaimed the idea that the ballot must be delivered to a specific location and instead embraced delivery of an absentee ballot to a person,” Bradley wrote. “Given this, the question then becomes whether delivery to a drop box constitutes delivery ‘to the municipal clerk.”

The court struck down the use of ballot drop boxes following the 2020 presidential election. At the time, the bench was considered to lean conservative; today, it’s considered to lean liberal.

In the 2020 ruling, the court said nothing in Wisconsin law allows for the use of unattended ballot drop boxes. The justices said absentee ballot law “must be carefully regulated to prevent the potential for fraud or abuse.”

Bradley wrote, “A drop box is set up, maintained, secured, and emptied by the municipal clerk. This is the case even if the drop box is in a location other than the municipal clerk’s office. As analyzed, the statute does not specify a location to which a ballot must be returned and requires only that the ballot be delivered to a location the municipal clerk, within his or her discretion, designates.”

The dissenting opinion noted politics.

“The majority again forsakes the rule of law in an attempt to advance its political agenda,” Justice Rebecca Bradley wrote. “The majority began this term by tossing the legislative maps adopted by this court … for the sole purpose of facilitating ‘the redistribution of political power in the Wisconsin Legislature.’ The majority ends the term by loosening the Legislature’s regulations governing the privilege of absentee voting in the hopes of tipping the scales in future elections.”

Rebecca Bradley said the ballot drop box decision is lacking both case law and common sense.

“To reach this conclusion, the majority misrepresents the court’s decision in Teigen, replaces the only reasonable interpretation of the law with a highly implausible one, and tramples the doctrine of stare decisis,” she added.

Ann Walsh Bradley said Friday’s decision simply restores the status quo of the 2020 presidential race.

“Our decision today does not force or require that any municipal clerks use drop boxes,” she wrote. “It merely acknowledges what has always meant: that clerks may lawfully utilize secure drop boxes in an exercise of their statutorily-conferred discretion.”

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Benjamin Yount is a contributor to The Center Square.
Photo “Mail in Ballots” by Cindy Shebley. CC BY 2.0.