MADISON – Wisconsin’s liberal-controlled Supreme Court on Friday restored the use of absentee ballot drop boxes in the swing state ahead of the upcoming elections — a reversal of a past decision from the court that could impact voter participation.
The 4-3 decision was a win for Democrats who argued the longstanding practice of allowing voters to file ballots into the locked, unmanned boxes made voting more accessible. That process, however, was highly criticized in 2020 by former President Donald Trump and Republicans who claimed without evidence that the boxes and absentee voting were rife with fraud.
“Our decision today does not force or require that any municipal clerks use drop boxes. It merely acknowledges what (state law) has always meant: that clerks may lawfully utilize secure drop boxes in an exercise of theirstatutorily-conferred discretion,” Justice Ann Walsh Bradley wrote in the majority opinion.
Friday’s decision means election clerks across Wisconsin can use the ballot drop boxes during the Aug. 13 partisan primaries and the Nov. 5 presidential election.
Justice Rebecca Bradley, a conservative, wrote in the dissent that the liberal majority “again forsakes the rule of law in an attempt to advance its political agenda,” citing the court’s previous ruling tossing the state’s electoral maps.
“The majority ends the term by loosening the legislature’s regulations governing the privilege of absentee voting in the hopes of tipping the scales in future elections,” Bradley wrote.
The ruling overturned a July 2022 decision from the court’s then-conservative majority that held ballot drop boxes were illegal in Wisconsin. Conservative justices in their 4-3 ruling at the time said state law did not permit drop boxes anywhere other than election clerk offices.
Democrats filed a challenge to the ban on drop boxes last year — just two weeks before the state’s high court flipped into liberal control. The suit argued the boxes “are critical for voters… who are unable to vote in person because of disability, scheduling conflicts, lack of transportation, or other hardship.”
Drop boxes had been used in Wisconsin and other states since the 1980s and 1990s. But they became a focal point during the coronavirus pandemic as a way to help voters cast ballots while limiting interaction with other people.
Hundreds of absentee drop boxes were installed across Wisconsin in 2020, and more than 40% of all votes cast that year were through absentee ballots.
Republicans began to scrutinize the drop boxes following President Joe Biden’s victory over Trump in Wisconsin by about 21,000 votes four years ago. Trump sought to persuade lawmakers and judges to overturn the battleground state’s election result. In doing so, he argued ballots returned in drop boxes amounted to voter fraud despite a lack of evidence to support the claims.
On Friday, Wisconsin GOP Chairman Brian Schimming called the ruling “a setback for both the separation of powers and public trust in our elections” and took aim at “the left-wing justices on the Supreme Court of Wisconsin.”
“This latest attempt by leftist justices to placate their far-left backers will not go unanswered by voters,” Schimming said.
Republican Rep. Tom Tiffany, who represents northwestern Wisconsin’s 7th Congressional District, falsely equated the allowance of drop boxes with “anonymous ballot box stuffing.” He used the decision to raise questions about the security of the upcoming elections, claiming it “opens the door to potentially fraudulent activities,” though there has been no evidence drop boxes contributed to fraud in the prior presidential election.
Despite the heavy scrutiny from Republicans, drop boxes were used widely in Wisconsin, including in conservative areas. In spring 2021, there were about 570 drop boxes in Wisconsin, according to court filings. Out of Wisconsin’s 72 counties, at least 66 had drop boxes as of spring 2021, PolitiFact Wisconsin noted.
This week’s ruling means cities with remaining drop boxes will likely be able to open them back up quickly ahead of the August partisan primaries.
Milwaukee Election Commission Executive Director Paulina Gutiérrez said she was excited by the decision, which she was reviewing early Friday.
In September 2020, Milwaukee installed 15 unstaffed absentee ballot drop boxes with a $70,000 grant from the Center for Tech and Civic Life, an organization financed by Facebook founder Mark Zuckerberg and his wife, Priscilla Chan.
After the 2020 presidential election Republicans were critical of private funds the Center for Tech and Civil Life granted to larger, Democratic-leaning cities, although municipalities of all sizes statewide received the grants.
The city’s drop boxes have been locked and inaccessible since they were banned by the state Supreme Court two years ago.
The drop boxes will now be inspected to ensure they’re still in working order.
In Madison, City Attorney Michael Haas has said the process is only a matter of unlocking a box and double-checking the video security.
The high court’s conservative justices in banning drop boxes two years ago said state law does not permit drop boxes anywhere other than election clerk offices. And they argued the Republican-controlled state Legislature was the only body that could form policy around the boxes — not the Wisconsin Elections Commission, which issued guidance to clerks permitting them in 2020.
During oral arguments in the case earlier this year, conservative Justice Rebecca Bradley likened the lawsuit to “asking this court to become a super Legislature and give free rein… to municipal clerks to conduct elections however they see fit.”
The new liberal majority, though, showed signs it planned to reverse its conservative members’ past ruling.
“What if we just got it wrong?” Karofsky said in May. “What if we made a mistake? Are we now supposed to just perpetuate that mistake into the future?”
Milwaukee Journal Sentinel reporter Alison Dirr and Hope Karnopp contributed.
