Wisconsin Supreme Court reverses previous decision, allows absentee ballot drop boxes (2024)

In a move that alters election rules heading into Wisconsin’s high-stakes presidential election, the state Supreme Court on Friday overturned the previous conservative majority’s two-year-old ruling that effectively barred the use of absentee ballot drop boxes in the state.

The 4-3 ruling means the freestanding, mailbox-like drop boxes — which saw increased use amid the COVID-19 pandemic before the Wisconsin Supreme Court in 2022 prohibited their use outside of clerk’s offices — can again be used to collect absentee ballots this fall.

The court’s four liberal justices, Ann Walsh Bradley, Rebecca Dallet, Jill Karofsky and Janet Protasiewicz, sided with Democratic groups who argued the state Supreme Court improperly ruled in July 2022 that absentee ballot drop boxes could not be used in the state except in clerk’s offices.

“We conclude that (state statute) allows the use of ballot drop boxes,” Bradley wrote in the order. “For the reasons set forth below, we determine that the court’s contrary conclusion in (the 2022 decision) was unsound in principle, and as a consequence, we overrule it.”

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

In their dissent, the court’s three conservatives accused the court’s liberal majority of forsaking the rule of law “in an attempt to advance its political agenda.”

“The majority in this case overrules (the court’s 2022 decision) not because it is legally erroneous, but because the majority finds it politically inconvenient,” conservative Justice Rebecca Bradley wrote in the dissent, which was joined by Chief Justice Annette Ziegler and Justice Brian Hagedorn. “The majority’s activism marks another triumph of political power over legal principle in this court. I dissent.”

The three were among the four conservative justices who ruled in 2022 that absentee ballots must be delivered by mail or in person to a local clerk’s office or designated alternate site.

The court’s decision means absentee ballot drop boxes can be used in Wisconsin’s upcoming Aug. 13 primary and Nov. 5 presidential election. Wisconsin, a state notorious for its razor-thin margins in statewide elections, is once again expected to be among just a handful of states to decide who wins the White House this fall.

Democratic Gov. Tony Evers said in a statement the ruling “affirms what voting rights advocates, local elections officials, and countless others have argued all along: drop box voting is safe, secure, and legal, and local clerks and election administrators should be empowered at the local level to make decisions that make sense for their local communities.”

Officials in Madison and Milwaukee said they expect the boxes to be up and running by the August primary.

With the previous ruling now overturned, city officials plan to return instructions to the boxes, update security measures and schedule teams of sworn election officials to pick up ballots from the boxes on a daily basis and transport them to the clerk’s office in tamper-evident sealed containers.

“The drop boxes won’t be up and running immediately,” Madison City Clerk Maribeth Witzel-Behl said in a statement. “But we are working quickly and will communicate when the drop boxes will be ready.”

“Madison is ready to follow the law and promote democracy,” Madison Mayor Satya Rhodes-Conway said in a statement.

At least 29 states allow the use of absentee ballot drop boxes, according to U.S. Vote Foundation.

No fraud found

Even so, the use of such drop boxes became a target of Republicans in recent years due in large part to unfounded claims of widespread election fraud by former President Donald Trump, who lost the 2020 election in Wisconsin to President Joe Biden by about 21,000 votes.

Multiple reviews and court decisions have found no evidence of widespread fraud in the 2020 election and an Associated Press survey of state election officials across the U.S. identified no cases of fraud, vandalism or theft that could have affected the results in 2020.

Brian Schimming, chair of the Republican Party of Wisconsin, said in a statement the court’s decision marks “a setback for both the separation of powers and public trust in our elections.”

The lawsuit was filed by Elias Law Group on behalf of Priorities USA, one of the nation’s largest Democratic organizations, after the state Supreme Court ruled in 2022 that absentee ballots must be delivered by mail or in person to a local clerk’s office or designated alternate site. The 4-3 ruling effectively barred the use of absentee ballot drop boxes, which were used in hundreds of communities across the state during the height of the COVID-19 pandemic.

Other voices

Rick Esenberg, president and general counsel for the conservative Wisconsin Institute for Law and Liberty, which led the lawsuit that led to the state Supreme Court’s 2022 decision, said in a statement the law’s “requirement that a ballot be returned in person to the municipal clerk does not mean leaving it somewhere for the clerk to pick up.”

“Whether or not you support the use of drop boxes, we should want the law to be followed as it is written,” he continued.

State law is silent on the use of secure ballot drop boxes.

David Fox, an attorney for national Democratic organization Priorities USA, said in May the 2022 ruling is “unworkable” because it “provides too little guidance on what is not permitted for municipal clerks and voters.”

Fox noted that in 2022, after drop boxes had been banned, more than 1,600 absentee ballots were received by local clerks’ offices after Election Day and were not counted. In 2020, when the boxes were in use, fewer than 700 ballots arrived after Election Day. Nearly three times as many people voted absentee in 2020 than in 2022, he added.