The Wisconsin Supreme Court issued a ruling on July 5 reinstating the use of unstaffed drop boxes ahead of the 2024 election.
The 4–3 decision reverses Wisconsin’s prohibition of unmanned drop boxes that took effect in 2022.
In 2022, state Supreme Court justices ruled that nothing in state law allowed for absentee drop boxes to be placed anywhere other than in election clerk offices.
In 2023, one new justice was elected and the new court reversed its earlier decision.
“What if we just got it wrong?” Justice Jill Karofsky said of the 2022 ruling during arguments in May. “What if we made a mistake? Are we now supposed to just perpetuate that mistake into the future?”
The court heard arguments three months before the Aug. 13 primary and six months ahead of the November presidential election.
Attorneys representing Republican backers of the 2022 ruling argued that there have been no changes in the facts or the law to warrant overturning the ruling that’s less than two years old.
Misha Tseytlin, attorney for the Republican-controlled Legislature, argued that if the court overturned the ruling, it would have to revisit the issue again the next time the makeup of the court changes.
There will be a vacancy on the court next year as Justice Ann Walsh Bradley won’t be running for reelection.
But Justice Karofsky asked what the court was to do if it believed the earlier decision was “egregiously wrong from the start, that its reasoning was exceptionally weak and that the decision has had damaging consequences.”
“I see this as check, check, check here, so what are we to do?” she asked Mr. Tseytlin.
Democrats argue the Wisconsin Supreme Court misinterpreted the law in its 2022 ruling and wrongly concluded that absentee ballots can only be returned to a clerk in their office and not to a drop box they control that is located elsewhere.
David Fox, attorney for the groups that brought the challenge, said the current law is unworkable because it’s not explicitly clear where ballots can be returned.
Several justices questioned the need to revisit the earlier ruling.
“You are asking this court to be a super Legislature” and give “free rein to municipal clerks to conduct elections however they see fit,” Justice Rebecca Bradley said.
The case was brought by Priorities USA, a voter mobilization group, and the Wisconsin Alliance for Retired Voters. Gov. Tony Evers and the Wisconsin Elections Commission, which administers elections, support allowing drop boxes.
Election officials from four counties, including the two largest counties, filed a brief in support of overturning the ruling. They argue absentee ballot drop boxes have been used for decades without incident as a secure way for voters to return their ballots.
More than 1,600 absentee ballots arrived at clerks’ offices after Election Day in 2022, when drop boxes were not in use, and therefore were not counted, plaintiffs’ attorneys noted in their arguments. But in 2020, when drop boxes were in use and nearly three times as many people voted absentee, only 689 ballots arrived after the election.
