Absentee ballot drop boxes: Wisconsin Supreme court reinstates

MADISON, Wis. - It is a decision that could affect voter participation in battleground Wisconsin in this presidential election year. The Wisconsin Supreme Court came down with a ruling concerning absentee ballot drop boxes on Friday, July 5. 

When the pandemic hit in 2020, ballot boxes like the one outside of Zeidler Municipal Building in downtown Milwaukee became a popular way to vote. For two years, they have stood dormant. But even with Friday's ruling bringing them back into action, the city's election leader said they are not available just yet. 

If you go back to 2022, the conservative-controlled Wisconsin Supreme Court ruled unmanned absentee ballot drop boxes were illegal. 

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But almost two years later, the now-liberal majority reversed course – saying drop boxes can be used in any location. Read the high court's complete decision.

The majority opinion said state law does not force or require municipal clerks to use drop boxes. But it allows clerks the discretion to use secure drop boxes even if the drop box is in a location other than the clerk's office. 

The dissent

All three conservative justices dissented in Friday's decision. Justice Rebecca Bradley wrote that the liberals are simply trying to advance their political agenda and criticized them for ignoring the precedent set by the 2022 ruling.

"The majority in this case overrules (the 2022 decision) not because it is legally erroneous, but because the majority finds it politically inconvenient," Bradley wrote. "The majority’s activism marks another triumph of political power over legal principle in this court."

"It’s one of the worst decisions because it’s so nakedly political. It’s not what a court should be doing," said Luke Berg, Wisconsin Institute for Law and Liberty (WILL) Deputy Counsel. "We can have debates about the merits of drop boxes, or not, but that’s ultimately that’s a question for the legislature. It’s a policy determination, it’s not a decision for a court to impose on the state by judicial fiat."

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WILL sued after the 2020 election, arguing the drop boxes broke state law. WILL won. After the court flipped, a progressive voter group asked the court to revisit the ruling. 

Groups like Disability Rights Wisconsin support the reversal. 

"Because of so many issues with mobility, transportation, all those things, it really is helpful. And for some people with disabilities, it’s the only way they are able to vote," said Kit Kerchensteiner, Disability Rights Wisconsin Legal & Advocacy Services Director.

Milwaukee Election Commission reaction

Milwaukee Election Commission Director Paulina Gutiérrez held a news conference late Friday morning to show her support for the high court's decision.

"This is just another opportunity for us to provide a safe and secure way for people to drop off their absentee ballots here to the city of Milwaukee," Gutiérrez said.

Gutiérrez told reporters the commission is reviewing the decision and waiting for guidance from the Wisconsin Elections Commission – but that a general physical audit of the ballot boxes has been done. 

"Currently we have 12 in operation. We're hoping to have 14 by the August election," Gutiérrez said. "We will not have them operational for the July 30th special election. However, the goal is to have them ready for the August partisan primary and then definitely for November presidential general election."

Some of the drop boxes need refurbishing and signs need updating, Gutiérrez said. The commission is also considering locations for all of the drop boxes that will be put into use. 

Wisconsin: A swing state

Wisconsin again figures to be a crucial swing state after President Joe Biden barely won it in 2020 and Donald Trump narrowly took it in 2016. Democrats believe that making it easier to vote absentee will boost turnout for their side.

At least 29 other states allow for absentee ballot drop boxes, according to the U.S. Vote Foundation, and expanded use in Wisconsin could have major implications in the presidential race.

Reaction

WisGOP Chairman Brian Schimming

"In a setback for both the separation of powers and public trust in our elections, the left-wing justices on the Supreme Court of Wisconsin have obeyed the demands of their out-of-state donors at the expense of Wisconsin. This latest attempt by leftist justices to placate their far-left backers will not go unanswered by voters."

Democratic Party of Wisconsin Chair Ben Wikler

"Today’s ruling affirms a basic principle: a democracy, we should make it easier for eligible voters to cast a ballot—not impose barriers based on conspiracy theories. By restoring access to safe and secure ballot drop boxes, the Court has ensured voters in communities across Wisconsin—cities big and small, in red areas and blue areas—are able to exercise their right to vote in a way that works for them. Also today, the Court ruled in a decisive 6-1 opinion to strip Republican politicians in Madison of their ability to anonymously veto state land stewardship projects, ensuring that already-approved funding can be put to work preserving public lands for future generations without interference from wealthy special interests. 

"Today’s rulings are a victory for Wisconsin’s constitution and our democracy, and should serve as a notice to Republican politicians in Madison—who have schemed for more than a decade to undermine the basic functions of our government—that the era of government sabotage is over."

Congressman Tom Tiffany (R-Wisconsin-07) 

"Just after Wisconsinites voted overwhelmingly to bolster election integrity in the state, the liberal Wisconsin Supreme Court voted to overturn a previous precedent they set, effectively legalizing anonymous ballot box stuffing. This decision not only opens the door to potentially fraudulent activities but also undermines the expressed desires of Wisconsin voters."

Milwaukee Mayor Cavalier Johnson

"I applaud the Wisconsin Supreme Court’s decision regarding election drop boxes.  Government ought to take every reasonable step to allow voters to participate in elections, and today’s decision advances that goal.

"The Milwaukee Election Commission plans to make drop boxes available for the August partisan primary and the November general election.  It is currently reviewing processes and equipment needs in order to deploy drop boxes. 

"There is no credible evidence drop boxes are an avenue for election law violations. And, Milwaukee will have appropriate protocols in place to assure continued election integrity."

WILL President and General Counsel, Rick Esenberg

"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. Reconsidering – again – a case decided just two years ago will prove to be a grave and historic mistake."  

Wisconsin Attorney General Josh Kaul

"The separation of powers and the freedom to vote are cornerstones of our system of government. The Wisconsin Supreme Court’s rulings today advance both. I’m proud that Wisconsin DOJ helped secure these victories.

"The drop box case restores a safe and secure method of voting. This is a win for common sense over conspiracy theories.

"In Evers v. Marklein, the court has put an end to the legislature’s unconstitutional usurpation of an executive branch function: the expenditure of appropriated funds.

"The contrast between these rulings and recent U.S. Supreme Court rulings is striking. At a time when the U.S. Supreme Court is retreating from longstanding tenets that preserve liberty—including even placing the President above the law for certain acts—Wisconsin is and must continue vindicating our fundamental principles."

Senator Melissa Agard (D-Madison) 

"Voting is the cornerstone of our democracy. It is of the utmost importance that we preserve this integral Constitutional right for each and every American. At a time when our democracy is under attack, it even more essential that we stand firm in our dedication to preserving our most fundamental institutions.

"The 2022 decision that banned most ballot boxes in the state was an affront to our history of democratic participation. I applaud the Wisconsin Supreme Court for doing the right thing for Wisconsinites by overturning the prior ruling and ensuring that all people have the ability to have their voice heard through their ballot."

Wisconsin Superintendent Dr. Jill Underly

"Today’s Supreme Court decision is a clear message to the Legislature that now is the time to refocus our energy on the needs of kids. The Joint Finance Committee should immediately release the $50 million we already agreed to spend – in a bipartisan fashion – to improve literacy education and help children learn to read, so they can read to learn. There can be no further delay, as local schools need to be ready to go on the first day of school. As I’ve said before, our kids are the ones who pay the price when adults hold students hostage and keep playing political games."

The Associated Press contributed to this report.