Wisconsin Supreme Court declares absentee ballot drop boxes are illegal
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)
In a 4-3 decision, the Wisconsin Supreme Court ruled that absentee ballot drop boxes are illegal and voters must send their ballots by mail or deliver them in-person to local clerks.
The court’s four conservative members decided that the Wisconsin Elections Commission (WEC) gave inappropriate advice in its guidance to local elections clerks that drop boxes are a valid way to return an absentee ballot. Despite the fact that drop boxes had been used for years, Republicans turned on the voting method after the 2020 presidential election — alleging that they are vulnerable to fraud as they searched for ways to cast doubt on the election results.
“The record indicates hundreds of ballot drop boxes have been set up in past elections, prompted by the memos, and thousands of votes have been cast via this unlawful method, thereby directly harming the Wisconsin voters,” Justice Rebecca Bradley wrote in the majority opinion. “The illegality of these drop boxes weakens the people’s faith that the election produced an outcome reflective of their will. The Wisconsin voters, and all lawful voters, are injured when the institution charged with administering Wisconsin elections does not follow the law, leaving the results in question.”
Bradley, who regularly makes historical comparisons in her opinions, added that in order for Wisconsin’s elections to be trusted, voters have to believe that the laws are being followed and that their vote will count.
“If the right to vote is to have any meaning at all, elections must be conducted according to law,” she wrote. “Throughout history, tyrants have claimed electoral victory via elections conducted in violation of governing law. For example, Saddam Hussein was reportedly elected in 2002 by a unanimous vote of all eligible voters in Iraq (11,445,638 people). Examples of such corruption are replete in history. In the 21st century, North Korean leader Kim Jong-un was elected in 2014 with 100% of the vote while his father, Kim Jong-il, previously won 99.9% of the vote. Former President of Cuba, Raul Castro, won 99.4% of the vote in 2008 while Syrian President Bashar al-Assad was elected with 97.6% of the vote in 2007.”
“Even if citizens of such nations are allowed to check a box on a ballot, they possess only a hollow right. Their rulers derive their power from force and fraud, not the people’s consent. By contrast, in Wisconsin elected officials ‘deriv[e] their just powers from the consent of the governed,’” she wrote. In April, Bradley joined the majority in a 4-3 decision choosing a legislative redistricting plan drawn by Republicans that increases their already heavily gerrymandered majority in the state Legislature of an evenly divided state.
In a dissenting opinion, Justice Ann Walsh Bradley wrote that drop boxes are a simple and legal way to make voting easier, especially during a pandemic. She added that the court’s majority has regularly decided to put up roadblocks to voting in the state.
“Although it pays lip service to the import of the right to vote, the majority/lead opinion has the practical effect of making it more difficult to exercise it,” she wrote. “Such a result, although lamentable, is not a surprise from this court. It has seemingly taken the opportunity to make it harder to vote or to inject confusion into the process whenever it has been presented with the opportunity.”
Drop boxes have already fallen out of use in Wisconsin, following the original decision in this case from a Waukesha County Circuit Court judge. By this year’s April elections, municipalities were putting large signs on their drop boxes to make sure voters didn’t accidentally break the law.
The court remained silent on a separate question in the Waukesha County case — whether voters are allowed to have someone else drop off their absentee ballot for them. Republicans have demonized this practice as “ballot harvesting” or “ballot trafficking” but advocates for people with disabilities say there are many Wisconsin voters who would be disenfranchised if they can’t get help from someone else because for some reason they’re unable to physically put the envelope in a mailbox or travel to their local clerk’s office.
Democrats criticized the ruling, saying it will harm people with disabilities and rural voters.
“No matter their politics, those who believe in democracy strive to ensure that every eligible voter can cast a ballot,” Ben Wikler, chair of the Democratic Party of Wisconsin, said. “With its ruling today, the Wisconsin Supreme Court is making it more difficult to vote. It’s a slap in the face of democracy itself. We know this decision will impact people with disabilities, seniors, people living in rural communities, people with limited means, few transport options, and inflexible work schedules, who are disproportionately young people and people of color.”
Democratic Gov. Tony Evers said the decision is one more example of Republicans attacking the state’s democracy and making it harder to exercise the right to vote.
“A basic but defining feature of our state and our country is the notion that politicians should not be able to abuse their power to prevent eligible voters from casting their ballots or cheat by changing the rules just because they didn’t like the outcome of the last election,” he said in a statement. “At the very heart of our democracy is the fundamental right for every eligible voter to be able to cast their ballot—a right that’s far too important to be left to the whims of any politician or political party. We should be working every day to protect that fundamental right by making it as easy as possible for every eligible voter to vote in Wisconsin.”
“Today’s decision is another in a long line of Wisconsin Republicans’ successes to make it harder for Wisconsinites to exercise their right to vote, to undermine our free, fair, and secure elections, and to threaten our democracy,” he continued.
The case was brought by two Waukesha County voters who were represented by the right-wing legal outfit, the Wisconsin Institute for Law & Liberty (WILL). WILL has regularly worked to add more restrictions to voting in Wisconsin and on Friday its president Rick Esenberg celebrated the court’s decision.
“This decision provides substantial clarity on the legal status of absentee ballot drop boxes and ballot harvesting,” Esenberg said in a statement. “While the question of whether an agent may mail an absentee ballot remains open, Wisconsin voters can have confidence that state law, not guidance from the Wisconsin Elections Commission, has the final word on how Wisconsin elections are conducted.”
WILL wasn’t the only right-wing group to laud the court’s decision. The Thomas More Society, which has played a major role in advancing conspiracies about the 2020 election in Wisconsin, attacked the WEC for its decision to allow drop boxes and alluded to its false allegations of fraud and misconduct.
“This decision reveals just the tip of the iceberg of Wisconsin’s election integrity problems,” Thomas More Society Special Counsel Erick Kaardal said in a statement. “And the worst of it is that it was all coordinated with the blessing of the Wisconsin Elections Commission.”
This story was updated at 11 a.m. on July 8.
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