The liberal majority of the Wisconsin Supreme Court signaled on May 13 that it is willing to overturn a prior decision by the court, which all but eliminated absentee ballot drop boxes in the state.
The court has been asked to reconsider its July 2022 ruling that state law does not support the use of absentee ballot drop boxes located outside of election clerks’ offices. Conservative justices held the majority when that ruling was issued. However, now that the court’s ideological makeup has shifted toward the left, it appears a reversal may be in the works.
“What if we just got it wrong?” liberal Justice Jill Karofsky posited as the justices heard oral arguments on Monday. “What if we made a mistake? Are we now supposed to just perpetuate that mistake into the future?”
The hearing comes just three months before Wisconsin’s Aug. 13 primary. The swing state is also expected to be a deciding factor in the November presidential election. A reversal could have major implications for how those elections play out.
Petitioners hold that the initial ruling in Tiegen v. Wisconsin Elections Commission unfairly burdened absentee voters and left unanswered questions about the specifics of how election clerks could accept absentee ballots.
However, attorney Misha Tseytlin, representing the GOP-controlled Legislature, said no new facts or circumstances had been presented to justify reconsideration of the ruling. If the court intends to overturn its own ruling absent those standard prerequisites, he said, then the court should just declare that stare decisis, or deference to judicial precedent, “is dead.”
Justice Karofsky, pushing back, asked what the court was to do if its members believed that the initial ruling was “egregiously wrong from the start, that its reasoning was exceptionally weak, and that the decision has had damaging consequences,” an opinion that Justices Janet Protasiewicz, Rebecca Dallet, and Ann Walsh Bradley seemed to share.
But Mr. Tseytlin challenged the notion that the ruling had “damaging consequences,” noting that there was “absolutely no evidence” before the court to suggest any negative effects on recent elections.
As for the opinion being “egregiously wrong,” the attorney said he thought “a fair respect to one’s colleagues” was in order, referring to the conservative justices who authored the decision.
Unanswered Questions
The core of the petitioners’ argument surrounds the question of how absentee ballots can be returned.“There are two separate rationales in Tiegen, and the court’s decision is unclear as to which of them or both of them are the governing rationale,” said David Fox, attorney for the liberal mobilization group Priorities USA.
One of those rationales, he said, suggests that voters could return their ballots to an unmanned drop at the election clerk’s office, while the other suggests that ballots must be returned person-to-person or potentially to a manned drop box.
“That does not give clerks sufficient guidance on what they can and cannot do,” Mr. Fox said.
But conservative Justice Brian Hagedorn said that was not the question before the court in the initial case, for which he wrote a concurring opinion.
“It’s a little odd to say, ‘You need to overrule the precedent’ because we decided the case before us and didn’t decide other issues that weren’t before us,” the justice said.
Conservative Justice Rebecca Bradley, who authored the majority opinion, likewise objected to the suggestion that the court needs to provide guidance on the law’s application.
“This court does not exist to provide guidance, OK? We don’t issue advisory opinions. We declare what the law says—that’s it,” she said.
The justice then summed up Mr. Fox’s argument as asking the court to become a “super Legislature” and “give free rein to municipal clerks to conduct elections however they see fit.”
“That, counsel, seems to me to be the greater danger to democracy because you are asking this court to override what the Legislature wrote.”
Mr. Fox said that was not his request, but rather that the court rule according to the text of the law.
Asked to identify what problems had resulted from the initial ruling, he said more absentee ballots had been discarded as arriving too late in 2022 than in 2020. He added that the decision had also given way to a flurry of litigation challenging other practices not expressly authorized or prohibited by law and would continue to do so if the decision were affirmed.
Political Implications
Absentee voting became widely popular across the country in 2020 due to the COVID-19 pandemic. More than 40 percent of Wisconsin voters opted to vote by mail that year, a record high.In the aftermath of that election, many questioned the security of absentee voting, with some charging that it enables fraud.
Former President Donald Trump, once chief among that group, has since softened his stance on the practice as he seeks to reclaim the White House this fall.
“ABSENTEE VOTING, EARLY VOTING, AND ELECTION DAY VOTING ARE ALL GOOD OPTIONS,” the former president said in an April 19 social media post.
“REPUBLICANS MUST MAKE A PLAN, REGISTER, AND VOTE!”
“Overruling Teigen threatens to politicize this court and cast a pall over the election,” the amicus brief said. “And far from settling the matter today, overruling Teigen would unleash a wave of new challenges and injunctions on the eve of the election.”
It is unclear when the court will hand down its decision.
