Groups file lawsuit aimed at legalizing ballot drop boxes

Just as a new state Supreme Court justice is set to ascend to the bench, giving progressives a 4-3 majority, two groups have filed a lawsuit in Dane County challenging absentee ballot restrictions in the state.

Priorities USA and Wisconsin Alliance for Retired Americans legally contested this week three provisions of Wisconsin election law that they say puts unnecessary restrictions on casting absentee ballots. Specifically, the lawsuit challenges a state requirement that absentee ballots be signed by an adult witness regardless of whether a voter lives alone, is homebound, or faces other barriers to satisfying the provision. The filing also challenges a Wisconsin law that has been interpreted to prohibit the use of drop boxes for collecting absentee ballots, as well as Wisconsin’s election day deadline for curing defects with absentee ballots.

“Seniors in Wisconsin take their constitutional right to vote seriously,” Ross Winklbauer, president of the Wisconsin Alliance for Retired Americans, said. “We are also the most likely to need to vote absentee because of health issues or transportation challenges. We are asking the court to remove these unnecessary barriers so all voters in Wisconsin, especially older voters, can cast a ballot that will actually be counted.”

Aneesa McMillan, deputy executive director of Priorities USA, said previous campaign cycles had put a much needed spotlight on blatant attempts to use restricted access to absentee voting as a means of voter suppression.

“As a result of this, vulnerable communities, including people of color, face extraordinary barriers to casting their ballots,” McMillan said. “We hope this legal effort will bring relief to Wisconsin voters while expanding access to the ballot for every eligible voter in the state.”

The lawsuit argues that the witness requirement unfairly bases the right to vote by absentee ballot on the ability to find a willing third party. It also argues that drop boxes have consistently been proven as a secure and convenient way to submit absentee ballots and were widely used without issue in the 2020 election. 

“Despite this, a recent court decision eliminated the use of drop boxes in 2022 which led to a significant increase in late-arriving absentee ballots,” the groups state. Finally, the groups say the lawsuit seeks relief for voters from the arbitrary deadline to cure defects in their ballot. While the current law allows voters to cure nonmaterial defects in their absentee ballots, it must be done before 8 p.m. on election day. 

That deadline deprives countless voters of the right to cure their ballots while serving no purpose, the lawsuit contends. The groups argue that the deadline to correct provisional ballots is the Friday following election day, and there is no reason why absentee ballots should be treated differently.

Ballot drop boxes

While all three provisions are controversial, the use of drop boxes is the most contentious and significant of the provisions being challenged. The state Supreme Court declared them illegal a year ago.

According to the complaint, after the state elections commission encouraged municipal clerks to use ballot drop boxes to make it easier for voters to return their absentee ballots in 2020, drop boxes immediately became one of the most popular methods for returning absentee ballots.

“In 2020, thousands of voters used hundreds of drop boxes without incident,” the complaint states. “These drop boxes were located in a variety of official municipal locations throughout Wisconsin.”

The lawsuit quotes U.S. Supreme Court justice Brett Kavanaugh as saying “secure absentee ballot drop boxes” contributed to making “[r]eturning an absentee ballot in Wisconsin . . . easy.” 

Not anymore, the lawsuit contends.

“In 2022, the Wisconsin Supreme Court [in Teigen] concluded that this guidance authorizing drop boxes violated [state law],” the complaint states. 

Since Teigen, the complaint continues, current WEC guidance provides that an absentee voter may only return their ballot via mail, return their ballot to their “municipal clerk’s office,” or return their ballot to their “polling place or central count location.” 

But not only are drop boxes a secure, accessible, and efficient method of delivering absentee ballots to the municipal clerk, the groups argue, they are also critical for voters who are unable to vote in person because of disability, scheduling conflicts, lack of transportation, or other hardship.

“Wisconsin law requires absentee ballots to be delivered by election day,” the complaint states. “Drop boxes therefore are especially important to voters who are concerned about the ability of the U.S. Postal Service to ensure timely delivery. As the U.S. Postal Service has acknowledged, mail ballot delivery times can vary widely, and delays in delivery can result in ballots arriving after statutory deadlines. A voter who timely completes their absentee ballot and places it in the mail therefore cannot guarantee that their vote will be received by the statutory deadline.”

What’s more, the lawsuit continues, election mail delay is well documented. 

“In the 2018 midterm elections, one of the five lowest-performing processing and delivery centers in the entire nation was the facility located in Eau Claire, Wisconsin, with nearly 14 percent of election and political mail delivered later than expected,” the complaint states. “Ballot delivery problems persisted in 2020.”

For example, the groups observe, during the April primary, three tubs of absentee ballots were discovered at the Milwaukee processing and delivery center after polls closed; the post office failed to deliver ballots requested on March 22 and March 23; and nearly 400 voted ballots did not receive postmarks or were not legibly marked by the post office.

“Indeed, but for the intervention of the federal courts, the U.S. Postal Service’s failure to timely deliver mail ballots would have invalidated the ballots of approximately 80,000 lawful voters in the spring 2020 primary election,” the complaint states. 

It is no answer to say that voters should return their absentee ballots early, the groups argued.

“Many voters do not decide which candidates they will support until shortly before election day,” the complaint states. “And particularly in primary elections, returning a ballot early may mean a wasted vote as candidates often drop out of the race shortly before election day. In Wisconsin’s August 2022 primary, for example, at least four candidates dropped out of the race after absentee ballots had been printed and mailed, and many ballots had already been returned.”

Drop boxes allow absentee voters to return their ballots through a convenient, safe, and reliable method that ensures that they will be returned on time, the group asserts, while the court-imposed prohibition on drop boxes has contributed to voter disenfranchisement.

“For example, in the 2022 general election, when drop boxes were prohibited, more than 1,600 absentee ballots were returned after election day; a similar number of ballots were returned late in the 2018 general election, before WEC encouraged the use of drop boxes,” the complaint states. “That is more than double the amount — and several times the proportion — of late ballots received during the 2020 general election, when ballot drop boxes were widely available.” Despite nearly three times as many absentee votes being cast, only 689 absentee ballots were returned after election day in 2020.

Significantly, the groups claim, there is no evidence that secure drop boxes facilitate voter fraud.

“Instead, the evidence demonstrates that secure drop boxes helped ensure that thousands of lawful voters were able to participate in the election without having to worry about the U.S. Postal Service’s ability to deliver their ballot in time to be counted,” the complaint states.