Residents drop mail-in ballots in an official ballot drop box outside of the Tippecanoe branch library in Milwaukee in October 2020. (Scott Olson | Getty Images)
A Waukesha County judge ruled on Thursday that guidance sent last year from the Wisconsin Elections Commission (WEC) to municipal clerks across the state about how to implement absentee ballot drop boxes is contrary to state law.
The decision from Judge Michael Bohren is a win for Republicans and the right-wing legal firm, the Wisconsin Institute for Law & Liberty (WILL), that brought the case. The use of drop boxes has become a common target for people who allege the election system is vulnerable to fraud.
In a report on the administration of the 2020 election published by WILL late last year, the organization argued that drop boxes were a significant source of possible unlawful voting during the 2020 election.
Bohren granted a summary judgment against the WEC for WILL and its clients, two Waukesha County voters. He ruled that the guidance violates state law that dictates how and where absentee ballots should be received, saying the statutes require a municipal clerk or a member of their staff to be present. He also ruled that the guidance — sent as memorandums by the WEC in March and August of 2020 in the wake of a crush of absentee voting due to the COVID-19 pandemic during two major, high turnout elections — counted as a rule and therefore should have been promulgated through the state’s rulemaking process, which can take more than a year and requires approval from multiple areas of state government.
“I’m satisfied that there is no authority, no statutory authority to have drop boxes used for the collection of absentee ballots,” Bohren said.
Bohren’s order also ended a practice that Republicans frequently refer to as “ballot harvesting” which is the practice of another person dropping someone’s absentee ballot into the mail or returning it to a municipal clerk.
WILL attorney Luke Berg argued that because the statutes don’t explicitly allow drop boxes, they are not legal and the guidance from the WEC leaves their use open to mistakes.
“The upshot of their argument, the result if this court accepts their argument, then effectively a shoe box on a bench in a park would be legal for collecting ballots,” Berg said. “Now that’s absurd, of course.”
Scott Thompson, an attorney for the voting groups intervening in the case — including Disability Rights Wisconsin — said that if Bohren granted WILL’s request to stop the use of drop boxes, certain voters would not be able to cast their ballots.
“There are a wide range of disabling chronic health conditions such as multiple sclerosis, cerebral palsy and paralysis, which prevent these individuals from returning their absentee ballots without the assistance of another person,” Thompson said. “It means that the undisputed record before the court on this question is that if the court were to rule either on the injunction or on summary judgment, in plaintiffs’ favor, that a significant portion of Wisconsin’s eligible voters would not be able to vote, and that simply conflicts with Wisconsin’s longstanding desire to give effect to the will of the voters.”
The issue of drop boxes has seen a significant amount of action from the Legislature and the WEC itself. In December the WEC, in response to recommendations from the Legislative Audit Bureau, began the process for creating a permanent rule to guide how drop boxes are to be used. Earlier this week, the Republican-controlled Joint Committee for the Review of Administrative Rules (JCRAR) voted 6-4 along party lines to force the commission into creating an emergency rule that guides drop boxes.
The WEC had been attempting to simply push its existing guidance through the rulemaking process, but according to Jeffrey Mandell, a lawyer for the intervenors, Bohren’s order kills that guidance.
“Judge Bohren is ordering WEC to rescind the guidance and is declaring, as a matter of law, that it’s wrong,” Mandell says. “I think that moots the issue of WEC trying to promulgate the same guidance as a rule. The guidance is now a dead letter — unless a higher court says otherwise or the Legislature passes a law that authorizes drop boxes.”
As a result of Bohren’s Thursday order, the WEC will need to withdraw the guidance, remove it from its website and send a message to all of Wisconsin’s 1,850 municipal clerks stating that the guidance was unlawful within 14 days.
The order comes about a month before the state’s spring primary on Feb. 15, an issue that Scott Thompson, an attorney for a number of voting rights groups who intervened in the case on behalf of the WEC, said could violate Purcell v. Gonzalez, a federal court decision which requires decisions regarding voting to be made far enough in advance of an election so as to not confuse voters.
This story was updated with additional information at 5:36 pm on Thursday, Jan. 13
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