After a lower court held they were not a valid way to cast a vote, Wisconsin's Supreme Court on Wednesday considered whether absentee ballot drop boxes are permitted under state law.
The lower court's January opinion held the boxes, although previously permitted by the bipartisan Wisconsin Elections Commission, were not specifically authorized by the Legislature, and therefore are not a valid method to cast a ballot.
Steven Kilpatrick, the assistant attorney general appearing before the justices on behalf of the Elections Commission, argued state law gives clerks leeway when administering elections.
"So therefore, there is giving discretion to the municipal clerk to set up these secure drop boxes as a way for absentee voters to return their ballots," Kilpatrick contended.
The high court's decision will determine whether drop boxes can be used in future elections, including this year's upcoming fall races, in which two pivotal lawmakers, Gov. Tony Evers and Sen. Ron Johnson, R-Wis., will be up for re-election. While it barred them at most locations, the lower court's ruling permitted drop boxes at clerks' offices and in other specific scenarios.
It also held people filling out absentee ballots must be the ones to mail or return them to the clerk's office, and ballots cannot be submitted by an unapproved third party. The finding prompted a flurry of hypotheticals from the court's justices Wednesday, who questioned the attorney representing the plaintiffs in the suit on several potential situations.
Brian Hagedorn, State Supreme Court Justice, considered to be the high court's key swing vote, asked how far the chain-of-custody rule should go.
"If I'm mailing an absentee ballot and my wife takes the three steps to put it in the mailbox rather than me, have I violated the law?" Hagedorn posed. "Do we need to decide that question?"
The lower court's order barring drop boxes has previously been both upheld and blocked by the state Supreme Court. Shortly after the lower court's initial decision, they permitted drop boxes for the spring primaries, holding clerks did not have enough time to adopt alternate rules. Later, the high court barred drop boxes for the April general election. In both cases, they did not rule on the underlying legal validity of the boxes.
Support for this reporting was provided by The Carnegie Corporation of New York.
