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Wisconsin Supreme Court Reconsiders 2022 Ban on Ballot Drop Boxes

Drop boxes had been utilized for years without issue in the state before a conservative court blocked their use.

Residents drop mail-in ballots in an official ballot box outside of the Tippecanoe branch library on October 20, 2020, in Milwaukee, Wisconsin.

Liberal justices of the Wisconsin Supreme Court signaled on Monday that they may overturn a 2022 ruling that made absentee ballot drop boxes illegal throughout the state.

There is no legislative provision either approving or disallowing drop boxes in Wisconsin. Hundreds of local governments had utilized drop boxes for years before the ban, as they are beneficial to a number of people, including the elderly, disabled residents and those living in rural areas who may not have easy access to local government offices where absentee ballots can be dropped off.

Republicans and Democrats had both initially lauded the use of drop boxes for voting. However, as unsubstantiated claims of election fraud became prevalent within the GOP (especially after Donald Trump started citing drop boxes in his false claims regarding his 2020 presidential loss), Republicans began demanding they be removed.

In 2022, the state Supreme Court, then controlled by a 4-3 conservative majority, agreed to block the use of drop boxes for voting throughout the state, endorsing the false election fraud rhetoric in part of their ruling. The justices also claimed that drop boxes were illegal because there wasn’t a specific statute empowering localities to manage drop boxes.

Two years later and following a shift in the bench’s makeup, the now liberal majority Wisconsin Supreme Court appears ready to reverse that decision.

“What if we just got it wrong? What if we made a mistake? Are we now supposed to just perpetuate that mistake into the future?” liberal Justice Jill Karofsky said during oral arguments this week.

Conservative justice Rebecca Bradley said that overturning the ruling would turn the court into “a super legislature…[giving] free rein to municipal clerks to conduct elections however they see fit.”

But liberal justices on the court noted that conservatives had essentially done the same thing two years ago, when they ruled to create a new law barring municipalities from managing themselves when it came to how they collected ballots.

Banning municipalities from engaging in certain actions, absent a state law expressly forbidding it, is “untenable,” said Justice Rebecca Dallet, a member of the liberal bloc.

“There is no way, even when our statute books are quite long and there are quite a few of them, that you could possibly ever encompass every tiny little thing that ever existed in any realm, especially in election law, when we have a decentralized system,” Dallet said during arguments.

David Fox, a lawyer for Priorities USA, one of the progressive organizations that brought forward the lawsuit against the drop box ban, made similar statements during his arguments to the court over the dangers of the restrictions that were imposed on Wisconsin communities two years ago.

“If everything needs to be expressly authorized, on pain of discarding ballots, that is a loaded gun,” Fox said to the court.

Fox also warned that the 2022 ruling could allow challenges on myriad other actions municipalities take regarding their management of elections.

“People will not see a problem, clerks will not see a problem, voters will not see a problem” with common sense actions clerks take, Fox noted in his argument. “And then after an election, someone is going to come to this clerk and they’re going to say ‘Wait, where’s the express authorization? All of those ballots need to be cast out.’”