Lawsuit Filed Against Wisconsin Election Commission Over Ballot Drop Boxes

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Residents drop mail-in ballots in an official ballot box outside of the Tippecanoe branch library on October 20, 2020 in Milwaukee, Wisconsin.
Residents drop mail-in ballots in an official ballot box outside of the Tippecanoe branch library on October 20, 2020 in Milwaukee, Wisconsin. (Image: Scott Olson via Getty Images)

Wisconsin Institute for Law & Liberty (WILL), a conservative nonprofit law firm, recently filed a lawsuit against the Wisconsin Election Commission (WEC). It challenged a law in the state that allows the use of ballot drop boxes during elections. The suit was filed on behalf of two voters from the state’s Waukesha County. It asks the court to issue a declaratory judgment “regarding the proper construction of the state statutes that set forth the legal methods for Wisconsin voters to cast absentee ballots.”

During Wisconsin elections in 2020, the WEC had issued memos to state clerks in March and August that encouraged the use of absentee ballots. They stated that such ballots need not be mailed by the voter or delivered by the voter in person to the municipal clerk. Instead, the ballot could just be dropped off in ballot boxes.

The suit notes that while voting is a constitutional right, voting by absentee ballot is a “privilege exercised wholly outside the traditional safeguards of the polling place,” according to the state’s statute. The legislature has also determined that such voting must be “carefully regulated” to prevent incidents of abuse or fraud. For example, state law mandates that absentee ballot voters must place their ballots in an envelope that “shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.”

The lawsuit argues that placing ballots into an “unsupervised, inanimate object” like a ballot box is an invitation for fraud and abuse. The legislature had sought to prevent such behavior by mandating that absentee ballots can only be cast by U.S. mail or by handing it over, by the voter, to a municipal clerk.

“An unstaffed, unsupervised absentee ballot drop box does not meet either of these legal options. And it raises significant concerns that elections are not being conducted legally and that Wisconsin voters will not have certainty that their votes will be counted if cast in this manner,” WILL said in a statement

The suit pointed to WEC’s March 2020 and August 2020 memos as “incorrect statements of law.” In the 2020 general election, the suit cited that municipal clerks used 500 drop boxes to collect absentee votes, which were encouraged by the August memo.

“By telling municipal clerks that absentee ballots can be cast in this fashion and by allowing votes to be cast in this fashion, WEC put votes cast by voters in jeopardy of not being counted because they are not being cast in strict compliance with the statutes,” the lawsuit stated.

In an email interview with Milwaukee Journal Sentinel, Mel Barnes, a counsel for liberal voting rights group Law Forward, called the lawsuit ridiculous.

“WILL and their allies have been attacking absentee voting and drop boxes in Wisconsin throughout 2020 and 2021 with no success. Courts have turned away these challenges over and over again,” Barnes said.

WILL President and General Counsel Rick Esenberg stated that the WEC advising clerks to act contradictory to state law put countless voters at risk. 

“Wisconsin voters deserve certainty that elections are conducted fairly and in accordance with state law,” Esenberg said in a statement.

If the suit is successful, voters from Wisconsin will no longer be able to hand over ballots to third parties to cast them. In addition, last year’s programs like “Democracy in the Park,” which allowed voters to drop off ballots with poll workers in over 200 parks around the state, would also be blocked.

As of June 30, only 12 states allow the use of drop boxes to collect absentee ballots during elections in line with the laws authorized by state legislatures. Wisconsin is not among the 12 states according to data from the National Conference of State Legislatures. The 2020 presidential race in Wisconsin was won by Joe Biden with a margin of fewer than 21,000 votes against Donald Trump.

Lawsuit rejection

The WILL lawsuit was filed just a few days after the Wisconsin Supreme Court had rejected another lawsuit that had sought to ban the use of absentee ballot drop boxes in the state.

Jere Fabick, the suit’s petitioner, businessman and GOP donor, argued that the use of drop boxes violated Wisconsin’s election laws. The suit also wanted to limit people who are allowed to return absentee ballots to election clerks as well as prevent election officials from filling in the addresses of witnesses missing on ballot envelopes.

On June 25, the court decided in a 4-3 ruling that the case was to be dismissed. The majority claimed that the plaintiff failed in presenting his arguments clearly. In her dissenting opinion, Justice Pat Roggensack stated that the court’s majority was avoiding urgent lawsuits. 

“They are issues that cry for judicial resolution by the Wisconsin Supreme Court before the 2022 elections begin,” Roggensack wrote.

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