The 4-3 ruling came a month before the August 9 primaries, when voters will narrow the fields for governor and US senator. Both matches in this battlefield state are closely watched nationwide.
For years, ballot boxes were used throughout Wisconsin without controversy. Election officials massively expanded their use in 2020 during the coronavirus pandemic as absentee voting reached unprecedented levels.
By the time of the presidential election, there were more than 500 ballot boxes throughout Wisconsin. Some Republicans opposed its use, pointing to a state law that says a ballot must “be mailed in by the voter, or delivered in person to the city clerk who issues the ballot or ballots.”
The state’s Supreme Court ruled Friday that voters must hand in their ballots themselves and not use drop boxes.
“The key phrase is ‘in person’ and it should take on its natural meaning,” Judge Rebecca Bradley wrote for the majority.
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In a dissenting opinion, Judge Ann Walsh Bradley called the majority “dangerous to democracy”.
“It has seemingly taken the opportunity to make it more difficult to vote or to confuse the process when given the chance,” she wrote.
The two Bradleys on the field are not related.
Majority opinion bluntly stated that “ballot boxes are illegal under Wisconsin statute” without distinguishing between manned and unmanned. The dissenters said they considered the case unresolved because the lower court found drop boxes that were staffed and could be used in the registry offices.
The case began last year when the conservative Wisconsin Institute for Law & Liberty filed a lawsuit over the use of drop boxes on behalf of two men in suburban Milwaukee. State law doesn’t list ballot boxes and the lawsuit argued their use “Causing doubts about the fairness of the election and affecting voters’ confidence in the electoral process,” and that the two men “have the right to conduct the elections in which they participate properly under the law.”
State election officials and disability rights advocates who intervened in the case defended the use of drop boxes and said they offered voters a way to hand in their ballots in person. In addition, they argued that nothing in state law prohibits voters from having their spouse, friend, or anyone else deliver their completed ballot papers to a clerk for it to be counted.
In January, Waukesha County Circuit Judge Michael Bohren ruled in favor of those who filed the lawsuit. He concluded that state law did not allow unmanned ballot boxes and required absent voters to return their ballots in person or put them in the mailbox themselves.
The state Supreme Court blocked Bohren’s order for the judge and school board primaries in February because they were fast approaching. But the judges have banned the use of drop boxes before the general election for those offices in April.
On Friday, the court sided with the lower court and issued a more permanent ruling that will affect future elections, starting with next month’s primaries. The clerks started sending the absent ballots last month.
Thirty states and the District of Columbia allow polls, according to the US Vote Foundation. According to the National Conference of State Legislatures, 31 states have laws that allow voters to give someone else their vote back for them. Some of those states allow voters to nominate whoever they want for that role, while others restrict it to family members or caregivers.
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Wisconsin law states that no one may “receive a ballot from or give a ballot to anyone other than the election officer in charge.” Those who filed the lawsuit argued that the policy must be strictly followed, meaning it would be illegal for anyone to drop their aging parents’ ballots for them or for church members to collect ballots after a service and then take them to a clerk’s office.
The majority agreed with that assessment.
Republicans were most concerned about large-scale efforts to collect ballots by partisan actors. While some engaged in that practice in other states, neither side conducted extensive ballot collection operations in Wisconsin in 2020, when Joe Biden narrowly defeated President Donald Trump in the state.
The lower court ruled that ballots returned by mail could only be put in the mailbox by voters themselves — a finding that alarmed disability advocates because some voters cannot physically go to the polls or put their ballots in the mail.
The Supreme Court didn’t go that far, saying it won’t address the question of whether a voter can have someone else post a ballot for the time being.
Rick Esenberg, the chair of the group behind the lawsuit, said in a statement that the ruling “provides substantial clarity on the legal status of absentee ballot boxes and ballot harvesting.”
The decision was made along ideological lines, with judges elected with the support of the majority Republicans and the judges elected with the support of Democrats who disagreed.
Both sides kept a close eye on Judge Brian Hagedorn, who won a 2019 race with the help of Republicans but sided with the court’s three liberals in a string of high-profile cases.
Hagedorn signed much of Bradley’s decision, giving Conservatives the four votes they needed for a majority.
In a consensus view, Hagedorn urged lawmakers to clarify the state’s electoral laws, some of which were first enacted more than a century ago.
“Some citizens will applaud this result; others will wail,” he wrote of the majority decision. “But the people of Wisconsin should remember that judicial decision-making and politics are different under our constitutional order. It is our duty to follow the law, which may mean that the policy outcome is undesirable or unpopular. However, we must abide by the law no matter what.”