Election absentee ballot drop boxes can’t be used in Wisconsin: Judge

January 14, 2022
Judge Michael O. Bohren speaks during Aug. 19 court proceedings.
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MADISON – A Waukesha County judge ruled Thursday that absentee ballot drop boxes can’t be used in Wisconsin, potentially upending aspects of the spring elections and the fall’s high-profile contests for governor and U.S. Senate.

After hearing three hours of arguments, Waukesha County Circuit Court Judge Michael Bohren determined state law allows absentee ballots to be returned in person or by mail — but not in a ballot drop box.

“It’s all good and nice, but there’s no authority to do it,” Bohren said of the use of drop boxes.

He said he would finalize an injunction in 10 days ordering the state Elections Commission to withdraw long-standing advice to municipal clerks around the state that says they can use absentee ballot drop boxes.

Drop boxes have long been available in some Wisconsin communities, but their use expanded greatly in 2020 when absentee voting exploded because of the coronavirus pandemic. More than 500 of them were available during the presidential election, according to a database compiled by the Wisconsin Center for Investigative Journalism.

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Bohren’s ruling barring the use of drop boxes — if it survives an almost-certain appeal — will affect how ballots can be returned in next month’s low-turnout primary for the spring elections. It will have more far-reaching consequences in the fall, when far more people vote. 

Thursday’s ruling came in response to a lawsuit filed in June by Richard Teigen of Hartland and Richard Thom of Menomonee Falls. They are represented by the conservative Wisconsin Institute for Law & Liberty. 

Luke Berg, an attorney with the law institute, argued ballot drop boxes could not be used because state law limits how ballots can be returned. 

Attorneys for the state Elections Commission and others disagreed, contending state law is not as strict on how ballots can be returned as the institute maintained. Bohren did not accept that view.

Bohren’s ruling also prevents voters from having someone else return their absentee ballots for them. That means political groups can’t pick up ballots for voters — a practice that has not been widely used in Wisconsin.

His decision also will prevent voters from giving their ballots to their spouses and neighbors to return for them.

The decision could also prevent officials from holding events like “Democracy in the Park,” which Madison staged in 2020 to allow voters to return absentee ballots to poll workers who were stationed in parks. 

Many of the ballot drop boxes in Wisconsin are tamper proof, under 24-hour camera surveillance and in fire stations, libraries or other government offices. Those drop boxes can no longer be used, but voters will still be able to drop ballots into less secure blue postal boxes that are on street corners around the state.

The lawsuit is part of a concerted push against drop boxes by Republicans and conservatives.

The Wisconsin Institute for Law & Liberty is involved in another legal challenge to them, and former Lt. Gov. Rebecca Kleefisch recently brought her own lawsuit.

Kleefisch, who is seeking the Republican nomination to challenge Democratic Gov. Tony Evers, has asked the state Supreme Court to directly take her case. The justices so far have not said whether they will take it.

Meanwhile, Republicans who control the state Legislature have been separately trying to block the use of drop boxes by forcing the Elections Commission to adopt formal rules on the matter by next month. If the commission were to do that, the lawmakers could swiftly block the rules.

There may be less focus on that effort now that Bohren has ruled.

Contact Patrick Marley at [email protected] Follow him on Twitter at @patrickdmarley.



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