Appeals court rules drop boxes can be used in February primary

An appeals court ruled on Monday that absentee ballot drop boxes will be allowed in Wisconsin’s Feb. 15 primary election. 

Last week, Waukesha County Judge Michael Bohren ruled that drop boxes aren’t allowed under state law and ordered that their use be prohibited. A number of groups filed an emergency appeal, saying the order came too close to the February election and that municipal clerks had already sent instructions out to voters for their use. Previous case law prevents election rules from being changed too close to an election so as not to confuse voters. 

“The Court of Appeals made the right call,” tweeted progressive legal firm Law Forward, which was one of the groups that appealed. “With the circuit court’s order stayed, Wisconsin’s clerks and voters can breathe a sigh of relief: drop boxes are still allowed, and we can still help each other return our absentee ballots.” 

“There will be no imminent change to the status quo prior to the spring elections,” Law Forward continued. “This decision is even more important as our communities continue to navigate the pandemic’s changing circumstances, voters can continue to rely on these safe, secure, and effective methods of absentee ballot return.” 

Drop boxes have become a political battleground after the 2020 presidential election and the rise of Republican conspiracies that the vote was stolen. Even though a number of prominent Wisconsin Republicans, including Assembly Speaker Robin Vos (R-Rochester), endorsed the use of drop boxes because of the COVID-19 pandemic, the tool has been singled out as a source of fraud. 

The lawsuit that initially ended the use of drop boxes was brought by right-wing legal firm, the Wisconsin Institute for Law & Liberty (WILL). Luke Berg, a WILL attorney who argued the case, said the group believes the initial order will stand. 

“State law is clear on the two legal methods to return an absentee ballot: mailing it or delivering ‘in person’ to the clerk,” Berg said. “We are confident that the circuit court’s ruling will ultimately be upheld and will evaluate our options.” 

Republicans in the Legislature have also made multiple efforts to prevent the use of drop boxes. 

With the emergency stay, the three judge panel on the District IV Court of Appeals allowed for drop boxes to remain in use for now and will later rule on the merits of the case to determine if they can be used past the February election. 

A reversal of Bohren’s decision would likely set up yet another fight over elections at the Wisconsin Supreme Court — which in recent years has taken up cases regarding redistricting, the removal of voters from the state registration list and Donald Trump’s efforts to overturn the 2020 election.