Legal Battle Over Wisconsin Absentee Voting Rules Heads to Court

Residents insert mail-in ballots in a drop box outside of the Tippecanoe branch library in Milwaukee, Wis., on Oct. 20, 2020. Scott Olson/Getty Images

A Wisconsin judge heard arguments on Oct. 31 from Republicans seeking to dismiss a lawsuit that would expand absentee voting in Wisconsin.

In July, progressive Democrats filed a lawsuit (pdf) against the Wisconsin Elections Commission to dispute the state’s absentee voting requirements. This includes a prohibition on absentee ballot drop boxes that went into effect last year as a result of a 4-3 Wisconsin Supreme Court decision.

The lawsuit, which was filed on behalf of the Democrat political action committee Priorities USA, the progressive Wisconsin Alliance for Retired Voters, and a retired voter from Dane County, argues that such restrictions contravene the state constitution’s right to vote.

“The provisions challenged in this case make it severely and unjustifiably more difficult for Wisconsinites to cast their votes and to have those votes count,” said David Fox, an attorney for the plaintiffs, during a motion hearing on Nov. 1.

“A burden on absentee voting makes it harder for people to vote,” he continued. “It’s clearly a burden on the right to vote.”

Republican legislators have joined the state’s bipartisan elections commission in requesting that the lawsuit be dismissed. Kevin LeRoy, an attorney for the Republican-controlled Wisconsin legislature, told Circuit Court Judge Ann Peacock that the Wisconsin Constitution does not explicitly enable absentee voting.

“The right to vote does not encapsulate the right to vote, specifically, by absentee ballot,” Mr. LeRoy said.

The lawsuit also contests the state’s current deadline of 8 p.m. on Election Day for correcting errors on absentee ballot envelopes. It also contends that requiring a witness to sign each absentee ballot envelope is burdensome, particularly for single Wisconsin residents.

Judge Peacock said that she anticipates rendering a ruling on the motion to dismiss within the next 30 days.

Drop Box Issue Revisited

This case comes just months after the Wisconsin Supreme Court ruled on July 8 of last year that ballot drop boxes are illegal under the state’s constitution.

In two 2020 documents, the Wisconsin Elections Commission (WEC) stated that not only can drop boxes be utilized, but they can also be unstaffed and permanent. Additionally, the agency said that “a family member or another person” may deliver a voter’s ballot on their behalf.

A lawsuit filed in 2021 stated that the guidance was problematic because Wisconsin law states that only the voter can deliver his or her ballot in person or by mail.

In its ruling from July 8, 2022, a majority of the Wisconsin Supreme Court concurred with the challenge to WEC.

“We hold the documents are invalid because ballot drop boxes are illegal under Wisconsin statutes,” Justice Rebecca Bradley wrote in the majority opinion. “An 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.”

The state Supreme Court upheld a circuit court ruling that decided an elector must “personally mail” his or her ballot, either through the mail system or by delivering it in person. The recent suit challenges these rulings, attempting to ensure that drop boxes could be used in the upcoming general election.

Issues regarding drop boxes have come up in a number of states, including Arizona, Arkansas, Missouri, Pennsylvania, and South Dakota, with state legislatures passing laws, and lawsuits leveled against the states about the issue.

Concerns about potential fraud involving drop boxes have arisen, particularly since the 2020 election.

Former Federal Election Commission member Hans von Spakovsky asserted in an interview this past year that since the 19th century, election fraud most often involves absentee ballot voting.