In Priorities USA v. Wisconsin Elections Commission (2023 WI 32), the court held that state law permits municipal clerks and local election officials to provide unattended drop boxes for voters to return their absentee ballots, overruling a 2022 decision that reached the opposite conclusion.

Facts

Priorities USA (a progressive political group), the Wisconsin Alliance for Retired Americans, and a retired state employee challenged several voting requirements on statutory and constitutional grounds. Among the policies challenged by the petitioners was the requirement that absentee ballots must be returned either by mail or by an in-person visit to the clerk’s office, and not by a secured but unattended drop box.

With respect to ballot drop boxes, the circuit court held that it was bound by a recent supreme court decision, Teigen v. Wisconsin Elections Commission (2022 WI 64), which was issued in July 2022 before the ideological balance of the court flipped from conservative to liberal. In Teigen, the court held that municipal clerks and local election offices may not operate unattended drop boxes for the purpose of collecting voters’ absentee ballots, because state law does not expressly permit it.

The petitioners appealed, asking the supreme court to bypass the appellate court and rule directly on this and several other issues. The supreme court accepted the case only on the drop box question. The Wisconsin Elections Commission (the respondent in this case) and Democratic Gov. Tony Evers (as an intervenor in the case) filed briefs agreeing with petitioners’ argument that Teigen was wrongly decided.

Decision

In a 4-3 decision (Justice Walsh Bradley, joined by Justices Dallet, Karofsky, and Protasiewicz), the court overruled Teigen, holding that “Wis. Stat. § 6.87(4)(b)1. allows the use of ballot drop boxes” as “an exercise of [municipal clerks’] statutorily-conferred discretion.” The section states that an absentee ballot “shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.” The court found that this language does not clearly prescribe a specific means for a clerk to physically accept an absentee ballot, nor does it expressly ban the use of drop boxes. Therefore, clerks may (but are not required to) offer a drop box as one potential means for voters to deliver their ballots to the clerk.

Dissent

In a dissent, Justice R. Bradley (joined by Justice Hagedorn and Chief Justice Ziegler) argued that the court violated stare decisis, “a foundational principle in the Anglo-American legal system,” by overturning a recent past decision without “sufficient,” “special,” or “compelling” justification. The dissent laid out five justifications for overruling precedent that the supreme court has identified in past cases and argued that the court’s present holding did not meet any of these standards.

The dissent went on to defend the soundness of the interpretive method used by the court in Teigen as “the best (or ‘fairest’…) interpretation of Wis. Stat. § 6.87(4)(b)1., and the new majority fails to demonstrate its alternative interpretation is superior.” Finally, the dissent, authored or joined by the court’s three conservative justices, accused the liberal majority of “loosening the legislature’s regulations governing the privilege of absentee voting in the hopes of tipping the scales in future elections.”