Wisconsin Supreme Court changes course, will allow expanded use of ballot drop boxes this fall

MADISON, Wis. (AP) — The Wisconsin Supreme Court ruled Friday that officials can place ballot drop boxes around their communities in this fall’s elections, overturning its own ruling two years ago limiting their use in the presidential swing state.

The court limited the use of drop boxes in July 2022, ruling then that they could be placed only in local election clerks’ offices and no one other than the voter could return a ballot in person.

Conservatives controlled the court at that time, but Janet Protasiewicz’s election victory in April 2023 flipped the court to liberal control. Seeing an opening, Priorities USA, a progressive voter mobilization group, asked the court in February to revisit the decision.

At least 29 other states allow for absentee ballot drop boxes, according to the U.S. Vote Foundation, and expanded use in Wisconsin could have major implications in the presidential race.

Wisconsin again figures to be a crucial swing state after President Joe Biden barely won it in 2020 and Donald Trump narrowly took it in 2016. Democrats believe that making it easier to vote absentee will boost turnout for their side.

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The justices announced in March they would review the ban on drop boxes but wouldn’t consider any other parts of the case. The move drew the ire of the court’s conservatives, who accused the liberals of trying to give Democrats an advantage this fall. Democratic Gov. Tony Evers in April urged the court to again allow drop boxes.

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The court ruled 4-3 on Friday that drop boxes can be utilized in any location.

Justice Ann Walsh Bradley, one of the court’s four liberal justices, wrote for the majority that placing a ballot in a drop box set up and maintained by a local election clerk is no different than giving the ballot to the clerk, regardless of the box’s location. Local clerks have great discretion in how they administer elections and that extends to using and locating drop boxes, she added.

“Our decision today does not force or require that any municipal clerks use drop boxes,” Bradley wrote. “It merely acknowledges what (state law) has always meant: that clerks may lawfully utilize secure drop boxes in an exercise of their statutorily-conferred discretion.”

All three conservative justices dissented. Justice Rebecca Bradley wrote 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 (the 2022 decision) 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.”

The popularity of absentee voting exploded during the pandemic in 2020, with more than 40% of all voters casting mail ballots, a record high. At least 500 drop boxes were set up in more than 430 communities for the election that year, including more than a dozen each in Madison and Milwaukee — the state’s two most heavily Democratic cities.

Trump and Republicans have alleged that drop boxes facilitated cheating, even though they offered no evidence. Democrats, election officials and some Republicans argued the boxes are secure and an Associated Press survey of state election officials across the U.S. revealed no cases of fraud, vandalism or theft that could have affected the results in 2020.

Republicans who control the Wisconsin Legislature intervened in the case, arguing that the justices should leave the 2022 ruling alone. Their attorney, Misha Tseytlin, didn’t immediately respond to an email seeking comment Friday.

Matt Fisher, a spokesperson for the state Republican Party, called the decision a “setback.”

“This latest attempt by leftist justices to placate their far-left backers will not go unanswered by voters,” he said in a statement.

Dane County Clerk Scott McDonell, who administers elections in the state’s most Democratic county, called drop boxes a “common sense tool.” He said they make the election process more convenient and easier for rural and disabled voters and help reduce that number of ballots that arrive after election day too late to be counted.

“Having drop boxes in place for the 2024 elections in August and November will encourage civic participation in our democracy,” McDonell said in a statement.