They’re back: Ballot drop boxes are in for November

The Wisconsin Supreme Court has reversed its own decision from two years ago, ruling 4-3 to reinstate the use of ballot drop boxes as a legal and legitimate way to vote in the state.

The decision, announced July 5, gives municipal election clerks the ability to place ballot drop boxes in various locations around their jurisdictions. As with abortion and redistricting, the decision had been expected after progressives gained a court majority with justice Janet Protasiewicz’s election to the court last spring.

In July 2022, the high court did not completely ban drop boxes, though Democrats said they might as well have, given that the court limited their used to inside local election clerks’ offices, with only the voter allowed to return a ballot in person.

Now the use of drop boxes is wide open again. Justice Ann Walsh Bradley wrote the majority opinion; as has become standard under the new progressive majority, conservative justice Rebecca Grassl Bradley wrote a blistering dissent.

Gov. Tony Evers agreed with the majority, saying the decision would bolster democracy.

“At the very heart of our democracy is the fundamental freedom to vote, and drop box voting is a safe and secure way to help make sure every eligible Wisconsinite is able to cast their ballot,” Evers said. “… This is a victory for our democracy, and we’re going to keep fighting to ensure that every eligible voter can cast their ballot safely, securely, and as easily as possible to make sure their voices are heard.” 

Common Cause Wisconsin also called the ruling a victory for voters and democracy.

“Reinstating the use of secure ballot drop boxes is good for all of us in Wisconsin,” Penny Bernard Schaber, a co-chairwoman of Common Cause Wisconsin and a former Wisconsin state representative, said. “It is especially good for individual voters who have mobility issues and time constraints that make it difficult for them to go into and out of a polling place or an election clerk’s office. Secure ballot drop boxes are a necessary and safe way to return our ballots.”

Schaber said drop boxes had been used since before 2016 and, in 2020-21, during the height of the Covid-19 pandemic, the number of drop boxes was expanded to 570 located in 66 of Wisconsin’s 72 counties.

State Sen. Melissa Agard (D-Madison) praised the ruling, too, saying voting is the cornerstone of democracy. 

“It is of the utmost importance that we preserve this integral constitutional right for each and every American,” Agard said. “At a time when our democracy is under attack, it is even more essential that we stand firm in our dedication to preserving our most fundamental institutions.”

The 2022 decision that banned most ballot boxes in the state was an affront to the state’s history of democratic participation, Agard said. 

“I applaud the Wisconsin Supreme Court for doing the right thing for Wisconsinites by overturning the prior ruling and ensuring that all people have the ability to have their voice heard through their ballot,” she said.

On the conservative side of the aisle, though, the messaging was different. U.S. Rep. Tom Tiffany (R-Wisconsin-7) said the decision effectively legalized potential election fraud.

“Just after Wisconsinites voted overwhelmingly to bolster election integrity in the state, the liberal Wisconsin Supreme Court voted to overturn a previous precedent they set, effectively legalizing anonymous ballot box stuffing,” Tiffany said. “This decision not only opens the door to potentially fraudulent activities but also undermines the expressed desires of Wisconsin voters.”

The Wisconsin Institute for Law & Liberty (WILL) condemned the ruling, saying it was an overtly political decision that would sow distrust in the 2024 election. WILL successfully sued two years ago under a different court majority to have the boxes effectively banned. 

“The law’s requirement that a ballot be returned in person to the municipal clerk does not mean leaving it somewhere for the clerk to pick up,” WILL president and general counsel Rick Esenberg said. “Whether or not you support the use of drop boxes, we should want the law to be followed as it is written. Reconsidering — again — a case decided just two years ago will prove to be a grave and historic mistake.”

WILL deputy counsel Luke Berg stated that, in 2022, the Wisconsin Supreme Court rightly rejected the use of ballot drop boxes because Wisconsin statute did not provide for them. Now, Berg said, a new court majority has thrown that away: “This was not how the court was intended to work, nor does it have any basis in statute.”  

Berg pointed out that, in 2022, the Wisconsin Supreme Court held that absentee ballot drop boxes, used widely in the 2020 election, had no statutory authorization and that Wisconsin Elections Commission (WEC) guidance encouraging their use was unlawful. 

“Their advice was contrary to state law,” Berg said. “Voting is a constitutional right, but state law makes clear that, ‘voting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place.’ There are just two legal ways in Wisconsin to submit an absentee ballot. When voting by absentee ballot, state law says, ‘[t]he envelope [containing the ballot] shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.’” 

Ann Walsh Bradley’s opinion

In the majority decision, justice Ann Walsh Bradley, who wrote the opinion, said location was irrelevant in the majority’s interpretation of the statute, and she stressed that using drop boxes was a local decision, not a state requirement.

“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.”

Bradley observed that the state legislature wanted the court to uphold the strict limits imposed by the 2022 decision, known as Teigen.

“It contends that the court’s statutory interpretation in that case was correct and that no intervening changes should cause us to revisit that decision,” Bradley wrote. 

Nonetheless, the justice continued, the majority considered the Teigen decision unsound “in principle.”

The justice covered a lot of ground on various arguments upholding the use of drop boxes, including stare decisis, the principle that requires courts to “stand by things decided,” or generally upholding precedent. But while the principle is “fundamental to the rule of law,” Bradley wrote, stare decisis is “neither a straightjacket nor an immutable rule” if there is special justification for overturning prior precedent.

This was one of those cases, Bradley said the majority determined: “Mere disagreement with the Teigen court’s rationale is insufficient to overturn it — something more is required. The ‘something more,’ which permeated the entirety of the Teigen majority’s analysis, was its misinterpretation of [the law] and the ‘skeptical’ gloss with which the court examined [one of the statutory provisions].”

The central flaw was the Teigen court’s misreading of the law itself, the progressives argued.

For instance, Bradley asserted, the law that addressed “absent voting procedure” sets forth requirements for the return of absentee ballots and the envelopes containing those ballots. 

“The statutory language at the center of this case comes from [the statute], and is not extensive: ‘The envelope shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots,’” Bradley wrote.

Bradley argued that there was no assertion in the statutory language that using a drop box was “mailing” a ballot, so the majority focused on the requirement that the ballot be “delivered in person, to the municipal clerk issuing the ballot or ballots.”

“In Teigen, the majority interpreted this provision to ban drop boxes, concluding that ‘[a]n absentee ballot must be returned by mail or the voter must personally deliver it to the municipal clerk at the clerk’s office or a designated alternate site,’” she wrote. “Specifically, the Teigen majority highlighted the phrase ‘to the municipal clerk,’ determining that ‘[a]n inanimate object, such as a ballot drop box, cannot be the municipal clerk.’ At a minimum, accordingly, dropping a ballot into an unattended drop box is not delivery ‘to the municipal clerk.’”

But not so fast, Bradley opined. In addition to often mentioning “municipal clerk,” the statutes also refer frequently to the “office of the clerk,” Bradley wrote, enough so that the two were not the same.

“Throughout our election statutes there exist references to the ‘office of the municipal clerk,’ ‘office of the clerk,’ or the ‘clerk’s office,’” she wrote. “When ‘office’ is used in conjunction with a reference to the clerk, such ‘office’ is specified as a place where a delivery or an action takes place.”

On the other hand, Bradley observed, “municipal clerk” is defined as “the city clerk, town clerk, village clerk and the executive director of the city election commission and their authorized representatives. Where applicable, ‘municipal clerk’ also includes the clerk of a school district.”

The statutes use the different terms in different ways so frequently, Bradley wrote, that one must conclude they are definitionally distinct.

“Put simply, the ‘municipal clerk’ is a person, while the ‘office of the municipal clerk’ is a location,” she wrote.

Had the legislature wanted to require delivery of an absentee ballot to a specific location, i.e., the clerk’s office, it could have done so, and the wide usage of the term “clerk’s office” throughout the election statutes certainly indicates that the legislature knew how to do so, Bradley wrote.

“It even tried to do so,” she wrote. “In 2021, the legislature attempted to pass a revision to the language of [the statute] that would have seemingly accomplished the result it seeks in this case. Namely, the legislature voted on language requiring return of an absentee ballot ‘to the office of the municipal clerk issuing the ballot or ballots.’ However, such language was vetoed by the governor and accordingly never became law.”

Still, Bradley continued, by mandating that an absentee ballot be returned not to the “municipal clerk’s office,” but “to the municipal clerk,” the legislature disclaimed the idea that the ballot must be delivered to a specific location and instead embraced delivery of an absentee ballot to a person — the “municipal clerk.”

Given that, Bradley continued, the question then becomes whether delivery to a drop box constitutes delivery “to the municipal clerk” within the meaning of the law.

“We conclude that it does,” she wrote. “A drop box is set up, maintained, secured, and emptied by the municipal clerk. This is the case even if the drop box is in a location other than the municipal clerk’s office. As analyzed, the statute does not specify a location to which a ballot must be returned and requires only that the ballot be delivered to a location the municipal clerk, within his or her discretion, designates.”

A thumb on the ballot box

Justice Rebecca Grassl Bradly dissented vociferously from the majority’s interpretation.

“The majority again forsakes the rule of law in an attempt to advance its political agenda,” Rebecca Bradley wrote. “The majority began this term by tossing the legislative maps adopted by this court in Johnson v. Wisconsin Elections Commission, for the sole purpose of facilitating the redistribution of political power in the Wisconsin legislature. The majority ends the term by loosening the legislature’s regulations governing the privilege of absentee voting in the hopes of tipping the scales in future elections.”

In reviewing the statute, Bradley declared, the majority replaced the only reasonable interpretation of the law with a highly implausible one.

“Teigen provided the best (or ‘fairest,’) interpretation of [the statute], and the new majority fails to demonstrate its alternative interpretation is superior,” she wrote. “Aside from mischaracterizing Teigen in order to deem it ‘unsound in principle,’ the majority fails to put a dent in Teigen’s interpretation of the statute.”

The law clearly requires an absentee ballot to be returned to the municipal clerk in one of two ways, Bradley reiterated: “The envelope shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.” 

“Teigen held the statute does not allow offsite, unattended drop boxes,” she wrote. “Wisconsin [law] defines ‘municipal clerk’ as ‘the city clerk, town clerk, village clerk and the executive director of the city election commission and their authorized representatives. Where applicable, ‘municipal clerk’ also includes the clerk of a school district.’ Interpreting the clear text, Teigen recognized [the statute] requires an absentee voter to either send the absentee ballot by mail or ‘deliver[]’ the ballot ‘to the municipal clerk’ — a person, not an inanimate object — ’in person.’”

To “deliver[]” something “to” another person, “in person,” requires a person-to-person exchange, Bradley continued.

“That is what the statute means, and what it has always been understood to mean,” she wrote. “Requiring person-to-person transmission of the ballot under [the statute] obviously precludes the use of unattended drop boxes.”

Then, too, Bradley continued, as Teigen also observed, other statutes contemplate only two locations at which a voter may deliver an absentee ballot in person: At the municipal clerk’s office or at a designated “alternate site.”

“As Teigen explained, [the statute] identifies the sites at which in person absentee voting may be accomplished — either ‘the office of the municipal clerk’ or ‘an alternate site’ but not both,” she wrote. “‘An alternate site’ serves as a replacement for ‘the office of the municipal clerk’ rather than an additional site for absentee voting.”

Alternate sites are also carefully regulated by the legislature, Bradley wrote. 

“They must be ‘located as near as practicable to the office of the municipal clerk or board of election commissioners and no site may be designated that affords an advantage to any political party,’” she wrote. “Given this detailed statutory language, [the statute] does not contemplate in person absentee voting at a location other than the office of the municipal clerk or an alternate site, and the explicit rules for alternate sites leave no reasonable room for in person absentee voting at any other locations.”

Indeed, Bradley continued, the majority would have everyone believe that buried within four innocuous words, “to the municipal clerk,” is a delegation of vast power to municipal clerks to create an absentee voting regime unlike anything resembling the law. 

“That is not how any reasonable reader — much less a judge — reads statutes,” she wrote. “Legislatures do not ‘hide elephants in mouseholes’; that is, a reasonable reader assumes the legislature ‘does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions[.]’’’ 

The majority makes the municipal clerk the law giver, Bradley continued.

“Having constitutionally vested the legislative power in the legislature alone, the people never authorized this court to give the lawmaking power to anyone else,” she wrote.

As for stare decisis, Bradley wrote, when a prior decision interpreted the law “within the range of permissible interpretations,” the decision should generally stand.

“The majority in this case must show more than it has been able to muster to justify overturning Teigen,” she wrote. “Discarding a decision requires something more than saying the court was merely ‘mistaken’ or the current majority sees the statute differently.”

Tellingly, Bradley wrote, nothing relevant had changed since the court decided Teigen two years earlier. 

“There have been no intervening changes in the facts or law to warrant overruling the decision,” she wrote. “Nor has any evidence emerged demonstrating the decision is detrimental to the coherence of the law or unworkable in practice. The policy-laden arguments against this court’s decision in Teigen have not changed either; the majority in this case has simply recycled the dissent in Teigen, rebranding it the opinion of a court.”

It does not deserve the title, Bradley declared.

“The only thing that has changed since Teigen is the court’s membership,” she wrote. “As justice Ann Walsh Bradley put it in a different case, ‘There has been no change in the relevant statutes, no change in the constitution, and no change in the underlying principles. Nonetheless, the majority substitutes its will over its obligation to stare decisis.’” 

But this decision, Bradley asserted, marked the end of statutory stare decisis in Wisconsin. 

“Intense partisan politics saturate our nation, exacerbated by a lack of institutional trust,” she concluded. “The legitimacy of elections continues to be questioned, each side accusing the other of ‘election interference’ and ‘threatening democracy’ or even the very foundation of our constitutional republic. The majority’s decision in this case will only fuel the fires of suspicion.”

Whatever can be said of the majority’s decision, Bradley wrote, it was not the product of neutral, principled judging. 

“Although the majority attempts to package its disagreements with Teigen as legal, the truth is obvious: The majority disagrees with the decision as a matter of policy and politics, not law,” she wrote. “The members of the majority believe using drop boxes is good policy, and one they hope will aid their preferred political party.”

Teigen upheld the historical meaning of [the statute], which bars the use of offsite, unmanned drop boxes, Bradley wrote.

“The majority in this case overrules Teigen not because it is legally erroneous, but because the majority finds it politically inconvenient,” she wrote. “The majority’s activism marks another triumph of political power over legal principle in this court.”

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.