MADISON, Wis. — A divided Wisconsin Supreme Court barred the use of most ballot drop boxes on Friday and ruled voters could not give their completed absentee ballots to others to return to election clerks on their behalf, a practice that some conservatives disparage as “ballot harvesting.”
For years, ballot drop boxes were used without controversy across Wisconsin. Election clerks greatly expanded their use in 2020 during the coronavirus pandemic as absentee voting hit unprecedented levels.
By the time of the presidential election, more than 500 ballot drop boxes were in place across Wisconsin, many of them at libraries and fire stations and some of them under video surveillance. Some Republicans balked at their use, pointing to a state law that says an absentee ballot must “be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.”
The state’s high court on Friday ruled that means voters themselves must return absentee ballots and cannot use drop boxes.
“The key phrase is ‘in person’ and it must be assigned its natural meaning,” Justice Rebecca Bradley wrote for the majority.
The 4-3 ruling fell along ideological lines, with the justices elected with support from Republicans in the majority and justices elected with support from Democrats in dissent. The court’s writings came to 140 pages, much of it in the form of concurring and dissenting opinions. A majority agreed on just 22 paragraphs scattered throughout Bradley’s lead opinion.
In a portion that reflected the views of three of the seven justices, Bradley wrote that “[if] the right to vote is to have any meaning at all, elections must be conducted according to law” and that over history, “tyrants have claimed electoral victory via elections conducted in violation of governing law.”
Bradley then listed examples: Saddam Hussein in Iraq, Kim Jong-il and Kim Jong Un in North Korea, Raúl Castro in Cuba and Bashar al-Assad in Syria.
“Even if citizens of such nations are allowed to check a box on a ballot, they possess only a hollow right,” Bradley wrote. “Their rulers derive their power from force and fraud, not the people’s consent … If elections are conducted outside of the law, the people have not conferred their consent on the government. Such elections are unlawful and their results are illegitimate.”
In a dissent, Justice Ann Walsh Bradley called such commentary inappropriate when there is no evidence of significant voter fraud in Wisconsin.
“The majority/lead opinion’s sky-is-falling rhetoric not only defies the facts, but also is downright dangerous to our democracy,” she wrote. “Absent evidence that supports its statements, the majority/lead opinion still lends its imprimatur to efforts to destabilize and delegitimize recent elections.”
The two Bradleys on the court are not related.
The majority opinion flatly stated “ballot drop boxes are illegal under Wisconsin statutes” without distinguishing between those that are staffed and those that are unstaffed. The dissenters said they considered the matter unresolved because the lower court found that drop boxes that were staffed and in clerk’s offices could be used.
“This is a bad day for democracy,” said Scott Thompson, an attorney who fought the lawsuit for Disability Rights Wisconsin and other groups that intervened in the case. “Whenever we are taking away familiar and simple and accessible ways to vote it is problematic for our democracy.”
Rick Esenberg, the president of the group that brought the lawsuit, called that view overblown. Wisconsinites can send in ballots by mail or vote in person during the two weeks leading up to Election Day, he noted. While long available in some jurisdictions, drop boxes were not widely used before 2020.
“I don’t think anybody would have said, ‘Well, we don’t have a democracy’ prior to the 2020 election,” he said.
In response to the decision, Milwaukee officials were keeping their drop boxes locked to make sure they could not be used and are considering removing them from libraries, said Claire Woodall-Vogg, the city’s election director. She said she hoped to create more opportunities for the curbside drop-off of absentee ballots at early voting sites this fall.
The case started last year when Esenberg’s group, the conservative Wisconsin Institute for Law & Liberty, brought a lawsuit over the use of drop boxes on behalf of two suburban Milwaukee men. State law does not mention ballot drop boxes and the lawsuit argued their use “causes doubts about the fairness of the elections and erodes voter confidence in the electoral process.”
Wisconsin law says no person may “receive a ballot from or give a ballot to a person other than the election official in charge.” Those bringing the lawsuit argued that policy must be strictly followed, meaning it would be illegal for someone to drop their elderly parents’ ballots off for them or for church members to gather ballots after a service and then take them to a clerk’s office.
State election officials and those who intervened in the case defended the use of drop boxes, saying they offered a way for voters to return ballots in person. In addition, they contended nothing in state law bars voters from having their spouse, a friend or someone else deliver their completed ballot to a clerk so it can be counted.
In January, Waukesha County Circuit Judge Michael Bohren ruled in favor of those who brought the lawsuit. He concluded state law did not allow unstaffed ballot drop boxes and required absentee voters to return their ballots in person or place them in mailboxes themselves.
Friday’s ruling upheld that decision and will be in place for elections starting with next month’s Aug. 9 primaries, when voters will narrow the fields for governor and U.S. senator. Both contests in this battleground state are being closely watched nationally. Clerks began mailing absentee ballots last month.
The state legislature is out of session and unlikely to change any voting laws before the elections. Next year Republicans who control the two chambers plan to pass a fleet of new voting bills but whether they can get signed will depend on who wins the governor’s race.
Twenty-nine states and the District of Columbia allow ballot drop boxes, according to the U.S. Vote Foundation. Thirty-one states have laws allowing voters to have someone else return their ballot for them, according to the National Conference of State Legislatures. Some of those states allow voters to designate whoever they want for that role, while others limit it to family members or caregivers.
Republicans in Wisconsin have been most concerned about large-scale efforts to collect ballots by partisan actors. While some have engaged in that practice in other states, neither side deployed extensive operations for ballot collection 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 be placed into mailboxes only by voters themselves — a finding that alarmed advocates for the disabled because some voters physically cannot get to the polls or place their ballots in the mail.
The Supreme Court didn’t go as far, saying for now it would not address whether a voter can have someone else place a ballot in the mail. Advocates for the disabled said they believed federal laws such as the Americans With Disabilities Act and Voting Rights Act would ensure disabled voters could get help to return ballots, whether by mail or other means.
Many of those following the case were closely watching Justice Brian Hagedorn, who won a 2019 race with the help of Republicans but in several high-profile cases has sided with the court’s three liberals.
Hagedorn signed onto much of Bradley’s decision, giving conservatives the four votes they needed for a majority.
In a concurring opinion, Hagedorn urged lawmakers to clarify the state’s election laws, some of which were first enacted more than a century ago.
“Some citizens will cheer this result; others will lament,” he wrote of the majority decision. “But the people of Wisconsin must remember that judicial decision-making and politics are different under our constitutional order. Our obligation is to follow the law, which may mean the policy result is undesirable or unpopular. Even so, we must follow the law anyway.”