The Wisconsin Supreme Court is set to hear a case that could allow the state's voters to once again use ballot drop boxes, with the hotly contested 2024 election just months away.
The debate around drop boxes, which are locked receptacles where voters can deposit an absentee ballot without taking it to the local clerk’s office, has been years in the making.
A conservative state Supreme Court in 2022 upheld a lower court ruling that these types of unstaffed drop boxes were not allowed under state law, a ruling that drew heavy criticism from disability rights groups and some local election officials. Drop boxes were also at the center of baseless conspiracy theories surrounding the 2020 presidential election.
The Supreme Court, now with a left-leaning majority after voters elected Justice Janet Protasiewicz in 2023, has opened the door to reconsidering a variety of issues, including ballot drop boxes.
How did we get here?
While some more rural areas used ballot drop boxes for years, they took on a different significance in the runup to the 2020 election, when the COVID-19 pandemic led to unprecedented interest in voting by mail.
Wisconsin Elections Commission guidance in 2020 outlined how clerks should use the boxes. By the spring of 2021, there were over 500 drop boxes in 66 of Wisconsin’s 72 counties.
Around 2 million voters cast an absentee ballot in 2020, though it is unknown how many of those used a drop box.
A 2021 lawsuit from several Wisconsin voters argued that the drop boxes were not allowed under state law. A Waukesha County judge and, ultimately, the state Supreme Court agreed.
“The illegality of these drop boxes weakens the people's faith that the election produced an outcome reflective of their will,” Justice Rebecca Grassl Bradley wrote in the 2022 opinion. “The Wisconsin voters, and all lawful voters, are injured when the institution charged with administering Wisconsin elections does not follow the law, leaving the results in question.”
In July, the group Priorities USA, a national nonprofit that supports Democrats, filed a lawsuit seeking to address a number of election-law-related matters, including the ballot drop box ban.
A Dane County judge ruled earlier this year that she did not have the authority to overturn the 2022 state Supreme Court ruling and dismissed the case. It was promptly appealed and the Wisconsin Supreme Court agreed to fast-track the matter on Tuesday, with oral arguments set for May 13.
What was the argument against drop boxes?
There are a few different strains of argument against the drop boxes.
The one most heavily promoted in the 2021 lawsuit is that there is no state law that specifically authorizes ballot drop boxes, pointing to language in statute that says an absentee ballot envelope “shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.”
A billboard paid for by the Wisconsin Voter Alliance questions “illegal drop boxes” and “election bribery” atop Sunny Pho restaurant on Park Street in Madison in 2022.
The Wisconsin Elections Commission in its guidance tried to give clerks standards for securing the drop boxes and handling the containers. Critics said that, because there is nothing in statute explicitly allowing drop boxes, there is no real requirement that they take on a certain form.
The issue should be the domain of the Legislature, not the Elections Commission, the lawsuit argued.
"A shoebox on a bench in a park would be legal for collecting ballots," Luke Berg, an attorney with the conservative legal group Wisconsin Institute for Law & Liberty, said in a 2022 court hearing. "Now, that's absurd, of course. But that's the logical consequence of the position that the commission is taking."
Grassl Bradley’s majority opinion agreed, noting that an “inanimate object, such as a ballot drop box, cannot be the municipal clerk.”
The ballot drop boxes also were central to arguments from former President Donald Trump that courts or the Legislature should overturn his defeat in Wisconsin in 2020. Trump even tried to argue that the Wisconsin Supreme Court ruling should apply retroactively to toss out the ballots of those voters who used the drop boxes in 2020, something that the lawsuit did not seek to do.
Trump and his allies have argued, without evidence, that drop boxes and mail voting more broadly lead to fraud. No states in the 2020 election reported voter fraud or stolen ballots linked to the boxes, the Associated Press found, with nearly 40 states using the tool.
Why do people want the drop boxes back?
In a dissenting opinion, Justice Ann Walsh Bradley called the idea that state statute didn’t allow for drop boxes to be a “rank distortion” of the law. She wrote that the boxes were, in effect, an extension of a local clerk’s office.
“A drop box is set up by the municipal clerk, maintained by the municipal clerk, and emptied by the municipal clerk,” Walsh Bradley wrote. “This is true even if the drop box is located somewhere other than within the municipal clerk's office.”
This now-defunct absentee ballot drop box outside Fire Station No. 1 in downtown Madison has been wrapped in black and emblazoned with a quote from Sojourner Truth.
Opposition to the conservative majority's ruling was fierce. Voter rights groups argued the decision was nothing more than a way of making it harder to vote, especially for people with disabilities, those with limited transit options or people who have jobs that make it almost impossible to visit a clerk’s office when it's open to the public.
Election officials have argued that ballot drop boxes are more secure than the U.S. Postal Service and the boxes were held up as an alternative in 2020 when, in addition to the COVID-19 pandemic, mail delays were slamming many parts of the United States.
The Priorities USA lawsuit noted that one of the worst performing postal distribution centers nationally was in Eau Claire, with consequences for voters trying to mail in their ballots. Getting a ballot returned earlier might penalize voters in the primary, where candidates drop out, or those who are undecided on which candidate to support.
“Drop boxes allow absentee voters to return their ballots through a convenient, safe, and reliable method that ensures that they will be returned on time,” the lawsuit said. “The court-imposed prohibition on drop boxes, by contrast, has contributed to voter disenfranchisement.”
What could happen in 2024 elections?
It is unknown which way the Supreme Court will rule, although the left-leaning bent of the court means there is a clear pathway to overturning the earlier 2022 ruling just months before a series of crucial primary and general election contests in Wisconsin.
Madison installed 14 secure ballot drop boxes outside of fire stations and at the Elver Park shelter ahead of the 2020 elections. This box was located outside of Madison Fire Department Station No. 4 on Monroe Street.
The decision by the court to take the case came as the state Senate adjourned for the final time this year without taking up a bill long desired by clerks to allow for the processing of absentee ballots the day before the election. That was seen as a way to speed up election results reporting and avoid feeding into unfounded conspiracy theories that fraudulent ballots were added late at night to change the outcome.
In the years leading up to 2020, Dane County Clerk Scott McDonell noted that, locally, there had actually been a decline in absentee voting by mail.
The pandemic changed everything and ballot drop boxes were a part of that. But there are indications, he said, that voters more recently are returning to either in-person voting or, if they want to vote absentee, doing so in person in the two weeks leading up to Election Day.
“I see a return to that,” McDonell said on pre-pandemic voter habits. “Drop boxes will still get used (if the Supreme Court overturns its previous ban). But I just don't see it being heavily used as it was before.”
Meanwhile, local election officials in Wisconsin have already wondered about the impact of a series of court-ordered changes to election administration and the ever-changing guidance that these developments can bring.
With oral arguments set to occur in May, a ruling on the ballot drop boxes may come down weeks before Wisconsin’s Aug. 13 partisan primary — something clerks are loath to see happen.
“If they're gonna do this, do it. Don't wait,” McDonell said. “It doesn't instill confidence in voters to have rules changing. We need time to update materials and get the word out … we're right up on an election, they're changing the rules, and that's not good, period. Even if I agree with the change, it's not good."
