Wisconsin Supreme Court Upholds Ban on Mobile Absentee Voting Sites

A mobile voting van in Racine, Wis., on July 26, 2022. (Ryan Patterson/The Journal Times via AP)

The Wisconsin Supreme Court issued a split decision on June 11 upholding a lower court’s ban on the use of mobile voting sites in the upcoming presidential election, while allowing the designation of alternate absentee ballot sites in line with policy in place since 2016.

The Wisconsin Supreme Court granted a partial stay in a case that challenged the legality of using mobile voting vans as in-person absentee voting locations and the designation of alternate absentee ballot sites in the City of Racine, according to the 12-page order filed on June 11.

The high court unanimously ruled to keep in place a Racine County judge’s January ruling that the use of a mobile van (called a “mobile election unit” or MEU) was unlawful. The mobile voting van, which was used to facilitate absentee voting, violated state election laws and unfairly benefited Democrats by visiting more Democrat parts of Racine in a primary election in August 2022, according to the lower court.

The Wisconsin Supreme Court justices wrote in their order that because Racine was the only municipality in Wisconsin that used a mobile voting unit, there was little risk that upholding the mobile voting unit ban would cause widespread confusion among voters or would otherwise disrupt preparations for the upcoming August primary and November election.

Absentee Ballot Site Designation

In a victory for Democrats, however, the Wisconsin Supreme Court’s liberal majority decided 4–3 to grant a stay on part of the lower court’s decision about the designation of absentee ballot sites.

In granting the stay, the high court is allowing municipalities across the battleground state to use the method in place since 2016 to determine where to locate early voting sites for the upcoming August primary and November presidential election.

Wisconsin state law prohibits locating any early voting site in a place that gives an advantage to any political party, and, in addition to ruling that the use of mobile vans violated this law, the circuit court found that an advantage to a political party could only be avoided if voters in the immediate vicinity of the absentee voting location cast their ballots exactly the same as voters who live near the municipal clerk’s office.

The circuit court’s decision curtailed the number of locations that municipalities were allowed to designate as alternate absentee ballot sites and, in the view of the Wisconsin Supreme Court, “effectively reinstated the one-location rule” that had been struck down in prior litigation.

The high court’s liberal majority wrote in the order that the lower court’s view on alternate absentee ballot sites could have “dramatic” effects across the state and found that public interest weighs “heavily” in favor of staying the lower court’s ruling in this regard.

The majority opinion indicated that there was little harm in granting a stay that would keep the same criteria in place for determining early voting locations. The criteria have been used since 2016, when the one-location rule was struck down.

“At this stage, just months before the August primary and November general elections, there is a risk that the circuit court’s ruling will disrupt ongoing preparations for those elections by creating uncertainty about which sites may be designated as alternate absentee balloting locations,” the majority opinion states.

Conservative Dissent

Justice Rebecca Bradley, one of the three conservative justices who dissented from the liberal majority on the absentee ballot designation part of the ruling, accused the liberal majority of partisanship and introducing confusion into the judicial process.

“In its ongoing effort to resolve cases in a manner benefitting its preferred political party, the majority enters a bewildering order heretofore unheard of in the legal realm,” Justice Bradley wrote in dissent. “While the majority (correctly) denies the motion to stay the circuit court’s order, the majority ’stays’ a portion of the circuit court’s legal analysis. This is not a ’thing' under the law.”

Justice Bradley further suggested that the entire circuit court decision remains in force and that, beyond ruling to uphold the ban on mobile voting units, “the rest of the majority’s order has no practical effect.”

Joining Justice Bradley in dissent was Justice Brian Hagedorn, who expressed confusion as to whether the alternate absentee ballot site designation rules remain in effect per the circuit court’s ruling.

“We stay orders, so I don’t know what it means to stay one interpretation of one portion of the legal analysis underlying an order we unanimously allow to remain in effect,” he wrote.

Justice Hagedorn added that the only thing that appears certain at this stage is that the use of mobile voting units is unlawful, with the remaining issues to be resolved as part of pending underlying litigation.

Requests for comment on the ruling sent to the Democratic Party of Wisconsin and to the Republican Party of Wisconsin were not immediately returned.

The Wisconsin Supreme Court is expected to schedule oral arguments in the underlying case in the fall, which will be too late to affect absentee voting rules for this year’s elections.

The Associated Press contributed to this report. This article has been updated with a statement received from WILL.