Wisconsin Drop Boxes: The Republicans’ Latest Attack

During the 2020 election cycle and COVID-19 pandemic, both Democrats and Republicans in Wisconsin and across the country agreed that drop boxes were a safe and secure way to cast absentee ballots. In fact, Republican legislators in Wisconsin openly encouraged the use of drop boxes before the 2020 general election, stating that they were a “convenient, secure, and expressly authorized” method of absentee voting. Over 500 drop boxes were set up in nearly every county across the state to ensure that all eligible voters could safely cast their ballots. This approach turned out to be successful: Wisconsin saw high turnout (72%) for the 2020 general election despite difficulties posed by the COVID-19 pandemic. There was an increase in absentee voting, as absentee ballots cast by mail or in person made up about 60% of the total number of ballots, largely thanks to the increased number of drop boxes. 

Despite this success, conservative activists are seeking to permanently ban drop boxes in Wisconsin. Last June, two voters sued the Wisconsin Elections Commission (WEC) in an effort to ban the use of drop boxes and require voters to mail or return their own completed ballots to designated officials. So far, these activists have been successful in their mission: Though drop boxes were allowed in the state’s February primary elections, they are currently banned in the state. Unfortunately, but unsurprisingly, this already had a negative effect on the rate of absentee voting in the state leading up to the April 5 primary elections.

Now this lawsuit is before the Wisconsin Supreme Court, where WEC and other groups seeking to protect drop boxes are pushing back against this attack. An oral argument before the state’s highest court is scheduled for April 13. Read on to find out what’s at stake in this case and how absentee voting could change in the Badger State as a result.

Who is involved in the case?

For a bit of background: The parties that originally filed this case (plaintiffs) seeking to ban drop boxes won at the trial court level, and the parties seeking to defend drop boxes (defendants) appealed to the appellate court. When the appellate court paused the trial court’s ruling in favor of the defendants, the plaintiffs then filed an emergency petition with the Wisconsin Supreme Court asking it to take control of the case before the appellate court ruled on it. 

To avoid confusion, here is a breakdown of the naming conventions we will use in this piece:

• Appellants: the parties seeking to defend drop boxes before the Wisconsin Supreme Court (in the Wisconsin Supreme Court, they are referred to as “defendants-appellants”)
• Respondents: the parties who initiated the lawsuit and are seeking to ban drop boxes (in the Wisconsin Supreme Court, they are referred to as “plaintiffs-respondents”)

The appellants include the Wisconsin Elections Commission (WEC) and intervenor groups the Democratic Senatorial Campaign Committee (DSCC), Disability Rights Wisconsin, Wisconsin Faith Voices for Justice and League of Women Voters of Wisconsin.

The respondents are two Wisconsin voters who are represented by the conservative group Wisconsin Institute for Law & Liberty (WILL).

What does the case challenge?

During the COVID-19 pandemic and in response to questions from election officials, WEC issued guidance encouraging the use of drop boxes for the 2020 primary and general elections. Two memorandums — one issued in March 2020 and the other in August 2020 — outlined that municipalities could choose to establish drop boxes or drop-off locations, advising that “these locations should be secure, regularly monitored, and ballots collected from them on a daily basis” and that voters could have family members or other individuals return completed absentee ballots on their behalf. These guidance documents did not require the implementation of drop boxes, but merely guided election officials who wanted to implement them in their municipalities. As mentioned earlier, over 500 drop boxes were used across nearly all counties in 2020, and contributed to the state’s highest voter turnout in 70 years. 

The voters who filed this lawsuit are challenging WEC’s memorandums in an attempt to ban drop boxes across the state. They argue that unstaffed drop boxes or drop-off locations are illegal under Wisconsin law and that only the voter who completed the absentee ballot can physically return it to the clerk or place it in the mail. The WEC, along with other groups protecting these methods of returning completed ballots, argue in response that drop boxes and third-party ballot collection are legal under Wisconsin election laws and should be allowed for future elections.

How will this case impact voters?

Drop boxes existed before the 2020 election cycle, but exploded in popularity during the COVID-19 pandemic due to concerns over in-person voting and the increased rate of mail-in voting. Just read these stories from Wisconsin voters who used drop boxes to vote during the 2020 elections: Voters of all backgrounds relied on drop boxes for their accessibility and convenience. However, when drop boxes became a prominent method to cast absentee ballots, Republicans immediately attacked them for expanding voting access. This lawsuit is a prime example of this: Conservatives are trying to roll back voting expansions that clearly helped more people safely cast ballots in recent elections.

Even though Republicans are waging nonstop attacks against drop boxes, this method of voting has consistently been shown to be safe, convenient and popular across red, blue and purple states. Banning drop boxes is not only unnecessary, but it would affect and potentially disenfranchise voters who rely on this accessible voting method. What’s even more worrisome is that the attack against drop boxes is not limited to Wisconsin. Republicans across the country have already passed and are planning to pass legislation restricting the availability of drop boxes simply because they do not like that drop boxes help more people vote.

What are the appellants (those defending drop boxes) arguing?

• The crux of this lawsuit focuses on a Wisconsin statute that states that, after an absentee ballot is completed and placed in a sealed envelope, the “envelope shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.” The appellants argue that, under the “plain language of this statute,” 1) election clerks are allowed to establish drop boxes or drop off locations for the delivery of completed absentee ballots and 2) voters can designate an individual to return their completed ballot by either placing it in the mail or delivering it in person to authorized drop-off locations. Furthermore, the appellants point out that there is no law expressly prohibiting either of these actions. 
• Focusing on the “in person” portion of the statute, WEC argues that the Legislature clearly did not intend to require voters to personally place their completed ballot in a mailbox or deliver it to a clerk because, if it did, it would have explicitly written so in the law. Instead, unlike other election laws, this statute does not expressly state that a voter must return their absentee ballot in person, leading WEC to believe that “the Legislature intends the elector to begin the mailing and delivery process; it does not intend to require that the elector herself actually deposit the absentee ballot in a mailbox or hand it over to a municipal clerk.” 
• Regarding the delivery of a completed ballot “to the municipal clerk,” WEC states that it views drop boxes as an authorized extension of clerks because “when an absentee ballot is placed in a secure drop box authorized by the clerk and operated in accordance with the Commission’s guidance, that ballot has been ‘delivered in person, to the municipal clerk,’ within the meaning of that statute.”
• The appellants point out that a narrow reading of the law at issue here would severely restrict voting options for individuals with physical disabilities or illnesses. And, even though the respondents argue that individuals with disabilities are protected by other laws, WEC alleges that none of the highlighted laws provide “meaningful relief to the broad category of absentee electors who would be potentially disenfranchised” by the elimination of drop boxes and third-party ballot collection. For these reasons, WEC argues that the plaintiffs “do not deny that their restrictive reading of [the statute] would disenfranchise voters who have physical illnesses or disabilities that prevent them from personally traveling to a mailbox or a clerk’s office. Instead, they dismiss such disenfranchisement as a mere ‘gap’ in existing law that should be addressed either through new legislation or through as-applied court challenges.” Since this interpretation could take away the right to vote for certain people, WEC urges the Wisconsin Supreme Court to “favor the interpretation that avoids unnecessary constitutional questions.” 
• Beyond the fact that Wisconsin law allows for drop boxes and no law expressly prohibits them, the appellants argue that the respondents provide no evidence that drop boxes lead to fraud. Specifically, the respondents have “failed to allege or prove a single instance of attempted ballot-tampering, ballot theft, or other abuses related to the use of ballot drop boxes during last year’s elections.”
• Along with the arguments above, the DSCC also suggests that the respondents lacked the ability to challenge drop boxes in the first place (in legal jargon, this is known as standing) because, as two voters residing in a single jurisdiction, they cannot “challenge the voting practices and procedures in any of the other 1,850+ voting jurisdictions around the state.”
• The Disability Rights Wisconsin intervenors also argue that the Wisconsin Supreme Court cannot decide the merits of this case because the respondents failed to follow proper procedure in challenging WEC’s memorandums. These groups suggest that, because the respondents did not first file an administrative complaint with WEC before filing a lawsuit, the appeal is dead on arrival.
• For all of these reasons, the appellants argue that WEC’s memorandums and Wisconsin’s use of drop boxes are perfectly legal under Wisconsin law and they should be reinstated.

What are the respondents (those seeking to ban drop boxes) arguing?

• Focusing on the statute regarding absentee ballots, the respondents initially argued that absentee ballots can only be returned legally via two methods: the voter mails their ballot to the municipal clerk or the voter hands their ballot to the municipal clerk. According to the respondents’ reading of the statute, a voter must physically mail or deliver only their own completed ballot and cannot rely on a friend or family member to return it for them. The respondents did, however, concede before the trial court that Wisconsin law allows for staffed drop boxes located in a clerk’s office — essentially admitting that, at least under their selective reading of the law, drop boxes are allowed in certain circumstances. 
• The respondents suggest that WEC’s guidance allowing the use of unstaffed drop boxes conflicts with Wisconsin’s absentee voting system, reading the statute at issue — “delivered in person, to the municipal clerk” — as requiring a voter to physically hand their completed ballot to a clerk or deposit it in a staffed drop box. The respondents go so far as to hypothesize that, under a liberal reading of the law, “a shoebox on a park bench would be a lawful method for accepting absentee ballots” — even though the WEC memorandums make clear what a secure and safe drop box should look like. Finally, the respondents argue that, since there is no Wisconsin law explicitly authorizing drop boxes, their use is illegal and WEC should not have issued guidance allowing them.
• The respondents argue strongly against a voter’s ability to allow a friend or family member return their completed ballot, alleging that it can lead to unlimited “ballot harvesting” (a phrase often used by conservative activists to describe the benign practice of ballot collection). “Requiring electors to return their own absentee ballots ensures that it is actually the elector’s vote and that voters take the exercise of the franchise seriously,” according to the respondents. Ignoring evidence that ballot collection efforts are crucial for those who would otherwise be unable to mail or deliver their absentee ballots, the respondents surmise that “there is no evidence in this case that requiring electors to return their own ballots would be a real problem for any voters, much less the extent of the problem if there were one.”
• As a way to deflect from the fact that their desired outcome in this lawsuit is to severely limit absentee voting, the respondents suggest throughout their brief that they don’t care about the actual drop boxes, but only about who has “the authority to create or alter the laws governing the return of absentee ballots.” In their reading, WEC “simply has no authority to create any new methods for returning absentee ballots.” Even though drop boxes existed in Wisconsin before 2020, and the WEC only provided non-binding guidance to elections officials about the use of drop boxes, the respondents argue that only the Wisconsin Legislature has the authority to govern absentee voting. Finally, “even if [the] WEC did have the authority to issue” the memorandums, the respondents allege that the WEC failed to follow proper administrative procedures and the documents should be voided for that reason.

What has happened so far?

In January of this year, a conservative state trial court judge sided with the plaintiffs and granted their motion for summary judgment, prohibiting the use of the 500+ drop boxes in the state and barring any third party from returning an absentee ballot on behalf of another voter. WEC and nonprofit groups seeking to protect drop boxes immediately appealed this decision and the court of appeals stayed (paused) the ruling for the state’s February primaries, meaning drop boxes were allowed in these February elections only. Unhappy that the trial court’s ruling was paused, those seeking to ban drop boxes then asked the Wisconsin Supreme Court to undo this pause and take over the case before the court of appeals could hear the full appeal. The state Supreme Court agreed to take the case and affirmed the appellate court’s pause, but declined to extend it to allow drop boxes for the state’s April primaries, meaning that drop boxes are currently banned in Wisconsin pending further action by the court. The case then went through briefing before the state Supreme Court addressing the legality of drop boxes.

What’s next?

This appeal is scheduled for oral argument at 9:30 a.m. ET on Wednesday, April 13. You can watch a recording of the argument here. All of the parties will present their arguments for and against drop boxes to the court’s seven justices. Though justices run in nonpartisan elections, the court is generally viewed as having four Republican and three Democratic justices. While it’s hard to speculate on possible outcomes, it is worth noting that the court’s swing justice, Brian Hagedorn (R), sided with the three liberal justices in allowing drop boxes for the February primaries, noting the last-minute ban of drop boxes would likely cause voter confusion. However, Hagedorn then sided with his three conservative colleagues in declining to allow drop boxes for the April primaries. 

Keep an eye on the case page and our Alerts for any future updates on this lawsuit.