Kaul wants state Supreme Court to allow voter drop boxes

In a brief filed last week before the Wisconsin Supreme Court, state attorney general Josh Kaul asked justices to overrule the state’s current ban on election drop boxes, arguing that Wisconsin law does not prohibit the use of drop boxes as a way for Wisconsin voters to deliver their absentee ballots in Wisconsin elections.

“Voting should be safe, secure and accessible — and drop boxes are,” Kaul said after filing the brief. “Unfortunately, the use of drop boxes has been swept into the broader and baseless attacks on our elections and our democracy. Through our filing, we’re arguing that Wisconsin law does not prohibit the use of drop boxes, and that clerks should be able to determine whether to offer this convenient method of voting in their communities.”

In the brief, Kaul argued that, until July 2022, Wisconsin municipal clerks regularly chose to designate drop boxes as a way for voters to deliver their absentee ballots. 

“By spring 2021, 570 drop boxes were placed across 66 of Wisconsin’s 72 counties,” the brief states. “National and state leaders commented favorably on that choice as a way to make returning a ballot ‘easy’ (justice Brett Kavanaugh), ‘safe’ (Wisconsin legislature), and ‘convenient, secure, and expressly authorized’ (speaker Robin Vos and then-Senate majority leader Scott Fitzgerald).”

Kaul also argued that clerks have been given discretion to identify administrative tools to properly conduct elections and assist voters, and that they have wisely recognized the value of drop boxes. 

“The share of Wisconsin voters casting an absentee ballot increased from 6 to 30 percent between 2002 and 2022, and drop boxes allowed voters to deliver their ballots simply even if they lived far from the clerk’s office, worked hours or had caregiving responsibilities that made it difficult to visit the clerk’s office during business hours, or cast their ballots too late to be sure that, given U.S. Postal Service delays, their ballot would arrive on time,” the brief states.

In response to inquiries from clerks, Kaul wrote, the Wisconsin Elections Commission issued guidance about drop boxes and providing security recommendations from the U.S. Cybersecurity and Infrastructure Security Agency.

And while the results of the November 2020 general election were contested, checked, and audited, Kaul asserted, there was no evidence produced in the subsequent court case of fraud or mistakes related to drop box delivery. Still, in Teigen v. Wisconsin Elections Commission, a majority of the court concluded that clerks are prohibited from designating drop boxes as an absentee ballot delivery option, at least if they are located outside the clerk’s office.

“The majority recognized that this was not based on the literal language of the absentee ballot return provision, and described its ruling instead as the ‘fairest interpretation,’” the brief states. 

Upholding precedent, or stare decisis, is a core principle of the judicial system and critical to its stability, Kaul acknowledged, but he asserted that it does not serve those purposes in situations where a decision was unsound at the outset and has proved unworkable as legal doctrine, leading to incoherence in the law and poorly serving Wisconsin citizens. 

“That is the case here,” Kaul argued. “Teigen’s guiding legal principles were incorrect, and it veered from plain language to a policy-based method of reading statutes. As a result, litigants and lower courts applying Teigen have misunderstood other Wisconsin elections statutes, and already some voters whose votes could count have probably had their ballots arrive too late. This court should overrule Teigen.”

The arguments

Among the arguments in the case, Kaul asserted that the Teigen decision ignored the discretion conferred on municipal clerks to utilize tools to assist in properly administering elections.

“Teigen’s unstated premise is these clerks can take no steps to administer elections — an immense, complex effort taking place within strict time deadlines — unless that action is expressly authorized in an election statute,” Kaul stated. “This view of Wisconsin election law is incompatible with the design of Wisconsin elections statutes, which vest discretion to municipal clerks and local elections officials to choose tools to assist them in properly administering elections responsive to the needs of their jurisdictions.”

Indeed, Kaul argued, state statutes charge municipal clerks with the supervision of elections, including any duties necessary to properly conduct them: “Each municipal clerk has charge and supervision of elections and registration in the municipality. The clerk shall perform [certain enumerated] duties and any others which may be necessary to properly conduct elections or registration . . . .” the brief quoted the statute.

In addition to municipal clerks, Kaul added, the statutes confer authority on county clerks, municipal commissioners, county commissioners, and inspectors to carry out various elections-related duties.

“Many elections provisions describe this type of broad authority, stating that municipal clerks and other local elections officials may make determinations about what is ‘necessary,’ ‘proper,’ and ‘practicable,’” Kaul argued. “This mandate covers several absentee voting procedures, including the preparation and distribution of absentee ballots. So the Legislature did not intend to limit the discretion of municipal clerks to in-person voting.”

There were also interpretive errors, Kaul asserted, observing that the law had two subsections: a policy subsection stating that the privilege of voting by absentee ballot must be carefully regulated to prevent fraud and abuse; and a mandatory application subsection, requiring that specific provisions of the absentee voting procedures must be followed for a ballot to be counted.

“The Teigen majority combined these two subsections to create a general principle that ‘Legislative Policy Directs Us to Take a Skeptical View of Absentee Voting,’” the brief states.  “It did not explain its precedent for combining statutory subsections to mean something beyond their text, what this ‘skepticism’ translated to as a legal principle, or even how this view served the goal of preventing fraud or abuse in absentee voting.”

What’s more, the brief stated, the idea that a legislative policy statement could “Direct[ ] [the Court] to Take a Skeptical View of Absentee Voting” strained the principles of statutory interpretation.

“When the Legislature wants a statute to be interpreted in a particular way, it does so by choosing the correct words in that statute, not by codifying a policy-based ‘canon,’” the brief states. “Wisconsin Stat. § 8.64(1) explains the Legislature’s reason for regulating absentee voting more closely than in-person voting: it was concerned about fraud and abuse. The provision is not a license to interpret absentee ballot provisions in a particular way.”

You say discretion, I say … what?

Kaul argues that Teigen’s interpretation of the statutes is unsound when the court concluded that the statute limits clerks’ discretion to designate a tool for the proper return of absentee ballots.

For example, Kaul’s brief states, the law allows voters to return absentee ballots by mail or “in person to the clerk.” 

“The statute does not purport to limit how clerks manage the return of ballots to them, but the Court offered two reasons why the statute did not permit clerks to utilize drop boxes: (1) ‘to’ must mean handing the ballot to the clerk rather than to a receptacle created by the clerk; and (2) because other statutes contemplated having events like voting occur at the ‘clerk’s office,’ [the statute] must impliedly be limited to the clerk’s office, too,” the brief stated.

Both these interpretations were unsound, Kaul argued.

For one thing, Kaul observed, the statute says nothing about a direct handoff to the municipal clerk, and clerks can designate places and people where ballots can be returned.

“[The statute] says that after the voter votes and places her ballot in the envelope and seals it, ‘the envelope shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots,’” the brief stated. “The Court’s conclusion that the phrase ‘to the clerk’ requires an in-person handoff, forbidding the clerk from designating a return receptacle, finds no support in the prepositional phrase.”

In fact, Kaul argued, the law permits absentee ballots to be returned by “deliver[y] in person, to the municipal clerk.” 

“This phrase says nothing suggesting that returning a cast ballot ‘to the clerk’ must occur in a hand-to-hand transaction,” the brief states. “Rather, the provision’s generic language permits the clerk to devise sensible, safe methods for voters to return their ballots, including through secure receptacles like drop boxes.”

Secure drop boxes approved by the municipal clerk accomplish the statute’s instructions, the brief continues. 

“An absentee ballot is personally delivered to a municipal clerk when it is placed in a drop box authorized by the municipal clerk,” the brief states. “Under the Commission’s former guidance, ballots should be retrieved from drop boxes and returned to the clerk’s office by authorized representatives of the clerk. Then, a clerk or authorized representative places them in a secure storage location until Election Day, just like absentee ballots mailed or delivered to the clerk’s office.”

A ballot deposited into an authorized secure drop box has been delivered in-person to the municipal clerk, within the meaning of the law, Kaul argued.

Out of the office

In addition to that major concern, Kaul argued that the law says nothing about delivering ballots to the “clerk’s office.”

“The Teigen court added language to [the statute] in a second way, changing ‘clerk’ to ‘clerk’s office,’” the brief states. “This reading similarly ran afoul of Kalal and Jefferson and basic principles of statutory interpretation.”

In fact, Kaul argues, state law provides for return of an absentee ballot “to the municipal clerk.”

“The word ‘office’ appears nowhere,” the brief asserts. “It is unlike many other statutes that describe events happening in the ‘clerk’s office.’ The election statutes are peppered with such statutes. They include allowing voters voting absentee to vote ‘in person in the office of the municipal clerk,’ and make absentee ballot applications ‘at the office of the . . . clerk.’”

Kaul said it was a fundamental principle of statutory interpretation that courts may not insert words into statutes to achieve a specific result. 

“And when the Legislature chooses to use language in one statute but omits that language from a related or closely located statute, courts presume that a different meaning was intended,” the brief stated. “This is especially true when the differences are found in multiple subsections of the same statute.”

The very statute at issue, Kaul asserted, refers to the ‘office’ of the municipal clerk four times but did not do so for ballot return. 

“If the Legislature wanted in-person delivery of absentee ballots to take place only at the clerk’s office, that is what it would have said,” the brief stated.

Finally, Kaul argued, drop boxes are widely used nationwide, and other states’ appellate courts have construed language like Wisconsin’s statute to permit clerks to offer drop boxes as an in-person return method.