Wisconsin Supreme Court allows ballot drop boxes for February spring primary, will decide later on future elections

MADISON – The Wisconsin Supreme Court agreed Friday to take a case over absentee ballot drop boxes, leaving in place a ruling that says they can be used for the Feb. 15 primary for Milwaukee mayor and local offices across the state.  

The justices will decide in the coming weeks or months whether the drop boxes can be used for elections after that. The case is being closely watched because it will determine the voting rules for the fall elections for governor and U.S. senator. 

None of the seven justices dissented from the decision to take the case. They split 4-3 on whether to allow the use of drop boxes for the Feb. 15 primary. 

The majority ruled drop boxes must be allowed for the Feb. 15 primary because absentee ballots have already been mailed to voters and some of them are accompanied by instructions that say drop boxes can be used. 

Justice Brian Hagedorn joins court's three liberals in allowing drop boxes

The majority consisted of the court's three liberals and Justice Brian Hagedorn, who was elected in 2019 with the support of Republicans. 

"As a general rule, this court should not muddy the waters during an ongoing election," Hagedorn wrote in a one-paragraph concurring opinion. 

Writing for the dissenters, Justice Rebecca Bradley argued the use of drop boxes should have been barred for the Feb. 15 primary because an appeals court did not adequately analyze the case. She took a shot at Hagedorn in a brief opinion. 

"Astonishingly, Justice Hagedorn says it doesn't matter whether the circuit court properly denied a stay of its order or not; apparently, once again, it's simply too close to the election to undo the court of appeals' mistake," she wrote.

"In Wisconsin, there is always an impending election. Under the logic of his concurrence, (the Wisconsin Elections Commission) may declare the rules as it wishes, the court of appeals may disregard the law when it wishes, and the majority will do nothing in response."

The split ruling signals that Hagedorn could prove to be the one who determines how the case is ultimately decided. He has broken with conservatives on some high-profile, politically charged cases. 

Absentee drop boxes in Wisconsin were popular ways to vote in 2020 due to COVID-19

Municipalities greatly expanded the use of drop boxes in 2020 in response to the coronavirus pandemic.

More than 500 drop boxes were available in Wisconsin in the presidential election.

Last summer, two suburban Milwaukee men represented by the conservative Wisconsin Institute for Law & Liberty filed their lawsuit challenging the legality of drop boxes.

They argue drop boxes are not allowed in Wisconsin because state law says ballots can be returned only in person or by mail. 

Court of Appeals suspends Waukesha judge's order to bar drop boxes

Waukesha County Circuit Judge Michael Bohren this month agreed and barred their use. 

On Monday, the District 4 Court of Appeals in Madison suspended Bohren's order for the Feb. 15 primary in part to avoid voter confusion. 

In response, those who brought the lawsuit asked the Supreme Court to take over the case and block the appeals court's ruling. They got half of what they wanted, with the justices taking the case but leaving the appeals court's ruling in place.

Those who support drop boxes say they offer a form of returning ballots in person and should be allowed. They say they provide a secure way to vote, noting many of them are under 24-hour video surveillance and in locations where they can be closely monitored, such as government offices, libraries and fire stations.

Also at issue in the case is whether voters can have someone else deliver their absentee ballots for them. 

Strict limits on returning absentee ballots for others would mean that political groups could not collect ballots from voters and take them to clerks. Such limits would also prevent people from dropping off ballots at clerks' offices for their family members or neighbors.

Hours before the Supreme Court agreed to take the case, the Elections Commission split 3-3 on party lines on what to tell clerks about drop boxes.

Their deadlock left in place the commission's advice that says drop boxes are legal. The Democrats on the commission wanted to keep the advice while the Republicans wanted to revoke it.

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.