Ballot boxes not allowed in Wisconsin, according to state Supreme Court rules

MADISON, Wis. – A divided Wisconsin Supreme Court banned the use of most ballot boxes on Friday and ruled that voters could not give their completed absentee ballots to others to return on their behalf, a practice that some conservatives refer to as “ballot harvesting.”

It’s a move feared by suffrage supporters, who said in advance that such a move would make it harder for voters – especially those with disabilities – to return their mail-in ballots. Many Republicans were hoping for a ruling they said would help prevent someone from voting on someone else’s behalf.

The 4-3 decision came a month before the state’s Aug. 9 primaries, when voters will narrow the fields for governor and U.S. senator. Both contests in this battleground state are closely watched nationwide.

For years, ballot boxes have been used without controversy throughout Wisconsin. Poll clerks dramatically expanded their use in 2020 during the coronavirus pandemic as absentee voting reached unprecedented levels.

At the time of the presidential election, more than 500 ballot boxes were in place across Wisconsin. Some Republicans have balked at using them, pointing to a state law that says an absentee ballot must “be mailed by the voter, or delivered in person, to the city clerk issuing the or ballot papers”.

On Friday, the state High Court ruled that voters themselves must return absentee ballots and cannot use drop boxes.

“The key phrase is ‘in person’ and it must be given its natural meaning,” Judge Rebecca Bradley wrote for the majority.

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In a dissent, Justice Ann Walsh Bradley called the majority “dangerous to democracy.”

“He apparently took the opportunity to make it harder to vote or to confuse the process whenever he had the chance,” she wrote.

The two Bradleys on the court are unrelated.

The majority opinion flatly stated that “ballot boxes are illegal under the laws of Wisconsin” without distinguishing between those that are staffed and those that are unstaffed. The dissenters said they considered the case unsolved because the trial court found that staffed drop boxes located in the clerk’s offices could be used.

The case began last year when the conservative Wisconsin Institute for Law & Liberty filed a lawsuit over the use of drop boxes on behalf of two men from suburban Milwaukee. State law does not mention ballot boxes and the lawsuit argued their use “causes doubts about the fairness of elections and erodes voters’ confidence in the electoral process”, and that the two men “have the right to have the elections in which they participate administered properly under the law”.

State election officials and disability rights advocates who have intervened in the case have defended the use of drop boxes, saying they offer voters a way to return ballots in person. Further, they argued that nothing in state law prevents voters from asking their spouse, friend or someone else to turn in their completed ballot to a poll clerk so that it can be counted.

In January, Waukesha County Circuit Judge Michael Bohren ruled in favor of those who filed the lawsuit. He concluded that state law did not allow unstaffed ballot boxes and required absentee voters to return their ballots in person or place them in the mailboxes themselves.

The state Supreme Court blocked Bohren’s order for the court and school primaries in February because they were rapidly approaching. But judges banned the use of general election drop boxes for those offices in April.

The court on Friday sided with the lower court and issued a more permanent ruling that will affect future elections, starting with the primaries next month. Clerks began sending mail-in ballots last month.

Thirty states and the District of Columbia allow ballot boxes, according to the US Vote Foundation. Thirty-one states have laws allowing voters to ask someone else to return their ballot for them, according to the National Conference of State Legislatures. Some of these states allow voters to nominate anyone they want for this role, while others limit it to family members or caregivers.

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Wisconsin law states that no one can “receive a ballot or give a ballot to anyone other than the election official in charge.” Those filing the lawsuit argued that the policy must be strictly followed, meaning it would be illegal for someone to drop off their elderly parents’ ballots for them or for church members to collect. ballots after a service and then take them to the clerk’s office.

The majority agreed with this assessment.

Republicans have been most concerned about large-scale efforts to collect ballots by partisan actors. While some have engaged in the practice in other states, neither side deployed extensive ballot collection operations in Wisconsin in 2020, when Joe Biden narrowly beat President Donald Trump in the ‘State.

The trial court ruled that ballots returned by mail could only be placed in mailboxes by voters themselves – a finding that has alarmed disability advocates as some voters physically cannot go to the polls or drop off their ballots by mail.

The Supreme Court didn’t go that far, saying for now it won’t address the issue of whether a voter can ask someone else to drop off a mail-in ballot.

Rick Esenberg, the chairman of the group behind the lawsuit, said in a statement that the ruling “provides substantial clarity on the legal status of mail-in ballot boxes and ballot harvesting.”

The decision followed ideological lines, with justices elected with support from Republicans in the majority and justices elected with support from dissenting Democrats.

Both sides were watching Judge Brian Hagedorn, who won a race in 2019 with Republican help, but in a series of high-profile cases he sided with the three liberals on the court.

Hagedorn signed off on much of Bradley’s decision, giving the Tories the four votes they needed for a majority.

In a concurring opinion, Hagedorn urged lawmakers to clarify state election laws, some of which were first enacted more than a century ago.

“Some citizens will applaud this result; others will mourn,” he wrote of the majority decision. “But Wisconsin residents need to remember that judicial decision-making and politics are different in our constitutional order. Our obligation is to obey the law, which may mean that the outcome of the policy is undesirable or unpopular. Even so, we still have to obey the law.

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