Chris Lieberman, FISM News
A judge in Wisconsin banned the use of absentee ballot collection boxes for elections, ruling on Thursday that their use violates state law.
In his ruling, Waukesha County Circuit Court Judge Michael Bohren ordered that the Wisconsin Election Commission (WEC) rescind their guidance for drop boxes, which they issued in a 2020 memo ahead of the primary and presidential elections. According to Wisconsin statute § 6.87(4)(b)1, absentee ballots “shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.”
“In looking at the statutes, there is no specific authorization for drop boxes,” Bohren said.
The WEC, represented by Assistant Attorney General Stephen Kilpatrick, claimed that they did not need to change state law in order to set up the collection boxes because their memo was advice to local election officials. “[The guidelines] do not order them to do anything,” Kilpatrick said.
But the Wisconsin Institute for Law and Liberty (WILL) argued that current laws offer no standard for drop boxes for what constitutes a drop box or where one can be placed. WILL attorney Luke Berg noted, “A shoebox on a bench in a park would be legal for collecting ballots. Now, that’s absurd, of course. But that’s the logical consequence of the position that the commission is taking.”
Bohren agreed with the plaintiff, despite the WEC’s memo offering guidance on where and how to set up a drop box. “All of that is good and nice,” said Bohren, “but there’s no authority to do it.”
“There are just two legal methods to cast an absentee ballot in Wisconsin: through the mail or in-person at a clerk’s office,” said Berg after the judge’s ruling. “We are pleased the court made this clear, providing Wisconsin voters with certainty for forthcoming elections.”
Bohren’s ruling will also ban anyone other than the voter from delivering ballots, be that a spouse, neighbor, or political groups. That would mean events such as Madison’s 2020 “Democracy in the Park,” where poll workers were stationed in parks to collect ballots, would not be permitted.
The case is expected to be appealed all the way to the Wisconsin Supreme Court. Jeff Mandell of Law Forward, who is appealing on behalf of the WEC, tweeted, “This ruling should not go into effect; we’ll be seeking a stay while appeals unfold. #SCOTUS has said states cannot change the election rules shortly before election day.” The tweet is in reference to a 2006 U.S. Supreme Court decision that ruled that election laws cannot be changed shortly before an election.
Should the case reach Wisconsin’s Supreme Court, the outcome would likely be determined by the court’s swing vote, conservative Justice Brian Hagedorn. In 2020, Hagedorn ruled against former President Trump in several cases seeking to overturn the outcome of the election in Wisconsin.
The final outcome of this case could have a major impact on the 2022 midterm elections, when both Democratic governor Tony Evers and Republican senator Ron Johnson are both up for re-election. Both parties view Wisconsin as a key battleground state and retaining Johnson’s seat is a key part of the Republicans’ goal to retake the Senate in November.