Wisconsin Drop Box Ban Challenge

Lawsuit filed by Priorities USA, the Wisconsin Alliance for Retired Americans and a voter against the Wisconsin Elections Commission challenging three rules regulating absentee voting procedures in Wisconsin. The complaint specifically alleges that three separate absentee voting rules violate the Wisconsin Constitution by treating absentee voting as a “privilege” and not a “right.” 

First, the plaintiffs challenge the state’s absentee ballot witness requirement. This rule requires an absentee ballot to be accompanied by a witness certificate — which contains a witness address — in order to prove that a voter completed their absentee ballot in the presence of an individual who can attest to the voter’s eligibility to vote absentee. Additionally, if an absentee ballot contains an error, voters may only “cure” (meaning fix) said errors in the presence of the original witness. The plaintiffs allege that this requirement burdens the right to vote and violates the Wisconsin Constitution’s right to a secret ballot, since witnesses can easily see how voters marked their absentee ballots. 

Second, the plaintiffs challenge Wisconsin’s complete prohibition on drop boxes, which emerged following the Wisconsin Supreme Court’s 2022 decision in Teigen v. Wisconsin Elections Commission. Since this decision, voters can only return their absentee ballots to a municipal clerk via mail or by dropping their absentee ballot off at a “polling place or central count location.” The plaintiffs contend that the state’s ban on drop boxes leads to disenfranchisement and assert that drop boxes should be reinstated since they are a secure and reliable method by which to return absentee ballots. 

Third, the plaintiffs challenge the deadline by which voters must “cure” errors on their absentee ballot envelopes. Under Wisconsin law, voters must cure defective absentee ballot envelopes by 8 p.m. on Election Day “if time permits.” The plaintiffs allege that this deadline deprives “voters who return their ballots on or close to Election Day” of the “cure opportunities that are extended to other absentee voters.” The complaint notes that “[i]n many cases, the inability to return an absentee ballot in time to permit a cure before 8 p.m. on election day may be due to no fault of the voter.” 

Finally, the plaintiffs challenge Wisconsin law for construing absentee voting as a “privilege” and not a “right,” despite the fact that Wisconsin Constitution protects the fundamental right to vote. In turn, the plaintiffs assert that the law’s differential treatment of in-person ballots versus absentee ballots violates the Wisconsin Constitution. The plaintiffs argue that all three absentee voting rules violate the Wisconsin Constitution and ask the court to deem them invalid.

On Jan. 24, 2024, the court dismissed some of the plaintiffs’ claims but allowed their challenge to proceed against the state’s witness requirement and Wisconsin law that deems absentee voting a “privilege” and not a “right.” On Jan. 26, the plaintiffs dismissed their remaining claims.

On Feb. 9, 2024, the plaintiffs, seeking to bypass the appeals court level, appealed the dismissal of their claims to the Wisconsin Supreme Court. On March 12, 2024, the Wisconsin Supreme Court agreed to hear arguments on whether to overrule its 2022 decision prohibiting drop boxes. On April 18, the Wisconsin Supreme Court agreed to allow Wisconsin Gov. Tony Evers (D) to participate in the case in defense of drop boxes.

STATUS: Litigation is ongoing in the Wisconsin Supreme Court, which will hold oral argument on May 13 to decide whether to reinstate drop boxes.

Last updated: April 26, 2024 12:49 pm EST