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Waukesha judge rules absentee voting boxes not allowed in February primary

Legal advocacy group Law Forward immediately filed an appeal

A woman drops off a mail-in ballot at a drop box
In this July 7, 2020, file photo a woman wearing gloves drops off a mail-in ballot at a drop box in Hackensack, N.J. Seth Wenig/AP Photo

A Waukesha County judge ruled Friday that absentee ballot drop boxes won’t be allowed in the Feb. 15 primary despite testimony from the Wisconsin Elections Commission that changing the rules this close to an election will be confusing for voters.

Circuit Court Judge Michael Bohren’s decision was based on his ruling earlier this month to order the Elections Commission to rescind its guidance to clerks on how to use the drop boxes, saying the commission had exceeded its authority when it issued the recommendations.

On Friday, the commission and legal advocacy group Law Forward asked Bohren to postpone the ruling until after the primary, which is less than a month away.

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Law Forward attorney Scott Thompson argued that Wisconsin clerks and voters are confused. He pointed to a 2006 U.S. Supreme Court decision that discourages courts from changing election rules this close to an election.

“The plaintiffs just continue to gesture wildly at Wisconsin statutes claiming that somewhere in there, your honor, you are going to find something to prevent the massive disenfranchisement we are worried about,” Thompson said.

The commission’s attorney, Assistant Attorney General Stephen Kilpatrick, also asked Bohren to allow the boxes, saying the primary election was already underway, with state clerks having sent absentee ballots to municipal clerks.

But Bohren continued to side with the conservative Wisconsin Institute for Law and Liberty, which brought the original lawsuit against the Elections Commission.

“I’m satisfied that the law is clear, and that the communities, the public, deserve to have the election in February, guided and administered by their elected representatives and not administered and not called out by the individuals on the Elections Commission,” Bohren said.

Immediately after the ruling Law Forward filed an appeal.

Drop boxes for absentee ballots have been used for years in Wisconsin, but their use was expanded greatly during the coronavirus pandemic in 2020.

The absence of drop boxes on Feb. 15 will likely affect thousands. According to Wisconsin Watch, there were 500 absentee ballot drop boxes in the state in November 2020 and nearly 2 million people voted absentee.

The Elections Commission issued the guidance in 2020, first in March and then again in August, in the run-up to Wisconsin’s presidential election.

The case is one of several filed by Republicans and their allies in an attempt to change the rules for voting headed into the 2022 election.

If this case finds its way to the Wisconsin Supreme Court, all eyes will be on conservative Justice Brian Hagedorn, the court’s swing vote. Hagedorn ruled against former President Donald Trump and his allies in multiple lawsuits seeking to overturn Wisconsin’s 2020 presidential election — all of which failed to result in findings of wrongdoing by election officials or voters.

President Joe Biden won Wisconsin by about 21,000 votes — a margin similar to several other razor-thin statewide elections in recent years.