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Wisconsin Supreme Court restores ballot drop box access

The decision reverses a 2022 ruling and comes after a lawsuit from the progressive group Priorities USA

A man places a ballot in a yellow envelope into a green drop off box that resembles a public mail box.
Dan Stremcha places a ballot in a drop-off box Tuesday, Sept. 29, 2020, at La Crosse City Hall. Angela Major/WPR

Voters in Wisconsin once again have the option to return absentee ballots via drop box, Wisconsin’s Supreme Court has ruled.

The 4-3 decision released Friday reverses a near-total ban on ballot drop boxes, which was handed down by the state’s high court two years before.

The ruling comes just four months before November’s presidential decision in a state where close elections are the norm. In 2020, Democrat Joe Biden won Wisconsin by just over 20,000 votes, which was a statewide margin of victory of less than 1 percent.

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In 2022, the Wisconsin Supreme Court concluded in another 4-3 ruling that unsupervised ballot drop boxes outside of clerk’s offices are illegal, because they’re not specifically authorized in Wisconsin law.

But since then, the balance of the state’s highest court has shifted. Liberals gained a majority last August when newly-elected Justice Janet Protasiewicz took office to replace retiring conservative Justice Patience Roggensack.

A majority of justices agreed earlier this year to hear a challenge from the progressive group Priorities USA, seeking to overturn the drop box prohibition.

Friday’s decision makes it easier for Wisconsinites to vote, by reinstating a “convenient and reliable option,” said attorney David Fox, who argued the case on behalf of Priorities USA.

“If you put the ballot in the mail, you don’t know when it’ll get delivered, and voters worry about whether it will get delivered in time and whether it will be counted,” said Fox of the Elias Law Group. “But, if you put it in a drop box by the deadline, you know that it’s going straight to election officials and it will be counted.”

A person drops off a mail-in ballot at an election ballot return box
A person drops off a mail-in ballot at an election ballot return box in Willow Grove, Pa., Monday, Oct. 25, 2021. Matt Rourke/AP Photo

Conservatives on the court opposed taking up the case, citing the legal principle that compels courts to honor precedent.

“Finding the decision politically inconvenient, and emboldened by a new makeup of the court, this new majority embraces the opportunity to overturn (the 2022 ruling),” Justice Rebecca Bradley wrote this spring in a dissent joined by Chief Justice Annette Ziegler. “The majority’s decision to do so will upset the status quo of election administration mere months before a presidential election and lead to chaos and confusion for Wisconsin voters and election officials.”

Wisconsin’s Republican-controlled Legislature intervened in the case, arguing there was no reason to revisit the drop box ban.

In their newly-released decision, however, liberals on the court concluded the 2022 ruling was wrongly decided.

“Our decision today does not force or require that any municipal clerks use drop boxes,” Justice Ann Walsh Bradley wrote in Friday’s majority opinion. “It merely acknowledges what Wis. Stat. § 6.87(4)(b)1. has always meant: that clerks may lawfully utilize secure drop boxes in an exercise of their statutorily-conferred discretion.”

Fox said the court erred two years in its approach to the issue, when justices concluded Wisconsin law doesn’t explicitly authorize the drop boxes.

“That is really not the test, especially in Wisconsin, where local officials have a lot of discretion about how to run their elections,” Fox said in an interview Friday morning with WPR. “The question should have been, and the majority today appropriately made the question — are drop boxes prohibited? Is there anything in Wisconsin law that is inconsistent with a clerk deciding to use a drop box to accept the return of a ballot? And, as the majority said today, there isn’t.”

Wisconsin’s Republican Party blasted the decision on Friday.

“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,” WisGOP Chairman Brian Schimming said in a statement. “This latest attempt by leftist justices to placate their far-left backers will not go unanswered by voters.”

Meanwhile, Disability Rights Wisconsin was among the groups to celebrate the ruling, and Madison Mayor Satya Rhodes-Conway called it a win for all voters, including “older adults, persons with disabilities, families with kids and others who might find it difficult to make it to the polls on election day.”

While it will take some time to bring the city’s drop boxes back online, Madison’s city clerk said the boxes are expected to be operational in time for Wisconsin’s Aug. 13 primary election.

Absentee voting surged in popularity during the COVID-19 pandemic, as public health officials urged people to avoid crowds. By spring of 2021, there were 570 drop boxes in place in 66 of Wisconsin’s 72 counties, according to court documents filed by the Wisconsin Elections Commission.

Wisconsin voters also have the option to return their absentee ballots by mail. Ballots must be received by the time polls close at 8 p.m. on Election Day in order to be counted.