The parties appealing the ruling have “more than the mere ‘possibility’ of success on the merits,” a three-judge panel on the Wisconsin Court of Appeals ruled.
Factors weighing in favor of blocking the lower court order include the Feb. 15 primaries already being in progress, the panel said, siding with the Wisconsin Elections Commission and intervenors like Disability Rights Wisconsin.
Forcing the commission to withdraw its guidance to election clerks to put out drop boxes could easily lead to confusion, the panel said. Nearly 8,400 mail-in ballots have already been sent out, and there could be voters who have already deposited them in drop boxes or given them to a family member or friend to mail in.
“If the current guidance is withdrawn at this stage of the election process, there is significant uncertainty as to whether these votes would be counted. Given this situation, the risk of confusion—and possible disenfranchisement—is compelling,” the panel concluded.
Disability Rights Wisconsin cheered the decision, as did Wisconsin Attorney General Josh Kaul, a Democrat who said the ruling “will stop new barriers to voting from being imposed, and almost certainly prevent some Wisconsinites from being disenfranchised, in the upcoming February elections.”
The Wisconsin Institute for Law and Liberty, which is representing the plaintiffs in the case, did not respond to a request for comment, but noted the ruling on its website.
Plaintiffs argued in their case that drop boxes and ballot harvesting are illegal under state law and the elections commission lacked the authority to issue its guidance in 2020. That argument convinced Waukesha County Circuit Court Judge Michael Bohren, who issued a summary judgment that neither practice is permitted by law.
The decision prompted an appeal, in which the commission said that without the appeals court stepping in, Bohren’s order would lead to “voter confusion” while the League of Women Voters of Wisconsin and other groups said in a separate filing that people unable to travel to polls would be disenfranchised without a stay.
Wisconsin Institute for Law and Liberty lawyers said in a response brief that defendants and intervenors didn’t meet the threshold to establish a stay and that their clients would be harmed by a stay because it would mean the primaries would include votes cast in violation of state law.
“The idea that numerous voters around Wisconsin will be disenfranchised if drop boxes are removed—which were not even an option until recently—defies belief,” they said.
