Wisconsin Supreme Court Reinstates Use of Ballot Drop Boxes

MADISON, Wis. — The Wisconsin Supreme Court on Friday reinstated the use of ballot drop boxes ahead of the 2024 election, overturning a 2022 decision from the court’s prior conservative majority that largely barred their use in this potential swing state.

Though drop boxes proved to be a widely popular method of returning absentee ballots ahead of the 2020 election, they became a hot-button issue in the weeks afterward as former President Donald Trump and his allies sought to sow doubt about the final election results.

In many cases Trump’s allies, led by former New York City Mayor Rudy Giuliani, specifically targeted, and tried to throw out, thousands of lawfully cast absentee votes.

In 2022, a group of conservative litigants convinced a majority on Wisconsin’s highest court that state law does not explicitly authorize the use of drop boxes.

In the end, the majority in Teigen v Wisconsin Elections Commissions held that state law provides only that voters can return absentee ballots via mail or in person to a municipal clerk.

In yet another example of elections having consequences, the politics of the court shifted in 2023 with the election of Janet Protasiewicz, and it was the court’s newly-minted progressive majority that overturned the Teigen decision on Friday morning.

In doing so, a majority of justices sided with plaintiffs Priorities USA, the Wisconsin Alliance for retired Americans and a registered voter in the state who challenged the drop box ban in a lawsuit filed last summer.

Writing for the majority, Justice Ann Walsh Bradley said that the Teigen court’s ruling was “unsound in principle” and that nothing in state law “prevents municipal clerks from agreeing to accept ballots at locations other than their own offices, including via secure ballot drop boxes placed elsewhere.”

Bradley went on to write that since ballot drop boxes are “set up, maintained, secured, and emptied by the municipal clerk,” a voter’s delivery of an absentee ballot to such a box “constitutes delivery to the municipal clerk.”

Though the decision reinstated clerks’ abilities to use drop boxes in the 2024 election, it does not mandate their use.

“It merely acknowledges what [Wisconsin law] has always meant: that clerks may lawfully utilize secure drop boxes in an exercise of their statutorily-conferred discretion,” Bradley wrote.

All three conservative justices dissented, with Justice Rebecca Bradley writing that the liberals are simply trying to advance their political agenda and criticized them for ignoring the precedent set by the 2022 ruling.

“The majority in this case overrules Teigen not because it is legally erroneous, but because the majority finds it politically inconvenient,” Bradley wrote. 

“The majority’s activism marks another triumph of political power over legal principle in this court,” she added.

According to the US Vote Foundation, at least 29 other states currently allow the use of drop boxes for the return on absentee ballots.

A number of voting rights organizations have maintained the free and fair access to the polls in Wisconsin could have an outsized influence on the outcome of the 2024 election.

Both of the last two presidential elections saw the eventual winner claiming victory in Wisconsin by narrow margins, and in one case in 2016, the state was seen as the tipping-point for the entire election.

Though polls showed former Vice President Joe Biden with a clear lead leading up to the 2020 election, he ultimately won the state by a narrow 0.63% margin over Trump.

In the end, Biden secured 49.45% of the popular vote to Trump’s 48.82% (1,630,866 votes to 1,610,184).

In 2016, Trump won Wisconsin by just 0.77% of the vote over former Secretary of State Hillary Clinton.

That year, Trump garnered the support of 47.22% of Wisconsin voters, compared to Clinton’s 46.45% (or 1,405,284 votes to 1,382,536).

The use of absentee ballots surged during the coronavirus pandemic and in 2020, the peak of the crisis, it is estimated that a record 40% of voters cast their votes using them.

In Wisconsin in 2020, at least 500 drop boxes were set up in more than 430 communities, with Democratic strongholds like Madison and Milwaukee being home to at least a dozen each.

Trump and other Republicans later asserted that the boxes were ripe for tampering, but elections officials in every state that used them said their investigations showed no vote tampering or other voter fraud had occurred.

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