Wisconsin Supreme Court: Ballot Drop Boxes Violate State Law

The Wisconsin Supreme Court ruled 4-3 on Friday that absentee ballot drop boxes are illegal under Wisconsin law, vindicating a legal argument advanced by the Trump campaign in 2020 — though the ruling will govern elections in 2022 and the future, and cannot change previous election results.

Justice Rebecca Bradley began for the court majority in the new case:

This case concerns two documents created by employees of the Wisconsin Elections Commission (“WEC”). These documents authorize municipal clerks and local election officials to establish ballot drop boxes. According to one of the documents:

A drop box is a secure, locked structure operated by local election officials. Voters may deposit their ballot in a drop box at any time after they receive it in the mail up to the time of the last ballot collection Election Day. Ballot drop boxes can be staffed or unstaffed, temporary or permanent.

The other document adds, “a family member or another person may … return the ballot on behalf of the voter,” i.e., an agent of the voter may place the voter’s absentee ballot in a drop box.

The use of ballot drop boxes was one of the four issues that former President Donald Trump litigated in Wisconsin against current President Joe Biden during the 2020 election. But in that case, Justice Brian Hagedorn broke with the three conservatives, siding with the three liberal justices in a 4-3 decision to hold on December 14, 2020 – the day the Electoral College cast the ballots that made Biden the next president – that under what is called the doctrine of laches it was too late in the game to rule on the legality of ballots cast in November 2020, refusing to rule on whether those ballots were illegal.

The three conservative justices vigorously dissented in that case, Trump v. Biden.

“Elections have consequences. One candidate wins and the other loses, but in every case, it is critical that the public perceive that the election was fairly conducted,” then-Chief Justice Patience Roggensack wrote in dissent in that 2020 case. “In the case now before us, a significant portion of the public does not believe that the November 3, 2020, presidential election was fairly conducted. Once again, four justices on this court cannot be bothered with addressing what the statutes require to assure that absentee ballots are lawfully cast.”

The three conservative justices then went on to explain why they thought Trump was correct on the merits of his 2020 challenge in Wisconsin, that many of the ballots counted in the election were in violation of Wisconsin election laws.

In this new 2022 case, Hagedorn joined with the three conservatives, with the majority opinion declaring, “We hold the documents are invalid because ballot drop boxes are illegal under Wisconsin statutes.”

After a lengthy analysis, Bradley concluded for the court majority:

Only the legislature may permit absentee voting via ballot drop boxes. WEC cannot. Ballot drop boxes appear nowhere in the detailed statutory system for absentee voting. WEC’s authorization of ballot drop boxes was unlawful, and we therefore affirm the circuit court’s declarations and permanent injunction of WEC’s erroneous interpretations of law except to the extent its remedies required absentee voters to personally mail their ballots, an issue we do not decide at this time, and we decline to decide at this time whether the memos are also invalid as unpromulgated administrative rules.

Bradley would also go further than the majority was willing to, adding in a concurring opinion that she would overrule her court’s 2020 decision (though again, that cannot go back in time to change the result now):

This court’s binding precedent allows WEC – a creature of the legislature authorized only to implement Wisconsin’s election laws – to make law by executive fiat, thereby granting it a potent “Badge of Domination.” In Trump v. Biden, a majority of this court gave WEC’s “advice” the force of law. It declared this “advice” is “the rulebook” for elections – never mind what the statutes enacted by the legislature say.

That 2020 decision’s “conversion of WEC’s mere ‘advice’ into ‘the rulebook’ flouts the rule of law,” she added.

Reaction from Republicans and conservatives has been swift and forceful in the wake of Friday’s decision.

“Today a majority of the Wisconsin Supreme Court had the courage to admit what some of its members refused to do when it mattered in the 2020 presidential election: Thousands of Biden’s votes in that state were illegal,” said Ambassador Ken Blackwell, a longtime Republican strategist and chairman of the Center for Election Integrity at the America First Policy Institute (AFPI).

“The 2020 election is over, Biden is president, and Trump would have had to win court cases in more than one state to change that outcome,” Blackwell noted. “But today’s decision shows that far from a ‘Big Lie,’ there were indeed widespread violations of state election law in Wisconsin, and possibly other swing states as well.”

“Hopefully Americans will now see that Democrats’ wide-eyed accusations that questioning the results of the 2020 election as illegitimate is nothing but an attempt to smear the opposition party,” Blackwell continued. “Members of Congress who wanted to raise these election integrity points in a lawful manner thus had important and meritorious points to make.”

“Speaking in my personal capacity: This also shows the importance of election integrity laws, which Wisconsin’s current Democrat Gov. Tony Evers opposes,” Blackwell concluded. “I pray the people of Wisconsin elect a Republican governor and lawmakers this fall who will pass much-needed voting legislation in that key state to safeguard future elections.”

The case is Teigen v. Wisconsin Elections Commission, No. 2022AP91 in the Supreme Court of Wisconsin.