Newly Liberal Wisconsin Supreme Court Reinstates Ballot Drop Boxes Ahead of 2024 Elections

The Wisconsin Supreme Court listens to arguments from Wisconsin Assistant Attorney General Anthony D. Russomanno, representing Gov. Tony Evers, during a redistricting hearing at the state Capitol, Nov. 21, 2023, in Madison, Wis. (Ruthie Hauge/The Capital Times via AP, Pool, File)

The Wisconsin Supreme Court ruled 4-3 to reinstate secure ballot drop boxes ahead of the 2024 elections, overturning a 2022 decision from the court’s then-conservative majority that prohibited the popular method of returning absentee ballots. 

In an highly anticipated opinion issued Friday morning, the court’s newly liberal majority — ushered in by the 2023 election of Justice Janet Protasiewicz — sided with Priorities USA, the Wisconsin Alliance for Retired Americans and an individual voter who challenged the state’s drop box ban as part of a lawsuit filed in state court last summer. 

The organizations contended that the state Supreme Court erred in deciding Teigen v. Wisconsin Elections Commission — the 2022 case in which right-wing litigants prevailed in  arguing that Wisconsin law does not authorize the use of drop boxes. The Teigen ruling concluded that state law exclusively allows voters to return absentee ballots via mail or in person to a municipal clerk, effectively barring the use of drop boxes statewide.

Liberal Justice Ann Walsh Bradley — the author of today’s majority opinion — agreed with the voting rights groups’ arguments against Teigen, holding that the decision “was unsound in principle” and that Wisconsin law “allows the use of ballot drop boxes.”

The four-justice majority opinion largely echoed the organizations’ reasoning that nothing in Wisconsin’s statutes “prevents municipal clerks from agreeing to accept ballots at locations other than their own offices, including via secure ballot drop boxes placed elsewhere.”

According to the opinion, the delivery of an absentee ballot to a drop box “constitutes delivery ‘to the municipal clerk’” in compliance with state law — a conclusion that is bolstered by the fact that drop boxes are “set up, maintained, secured, and emptied by the municipal clerk.”

“Our decision today does not force or require that any municipal clerks use drop boxes. It merely acknowledges what [Wisconsin law] has always meant: that clerks may lawfully utilize secure drop boxes in an exercise of their statutorily-conferred discretion,” the ruling reads.

Democrats are lauding today’s opinion as a major win for absentee voting and democracy more broadly in Wisconsin — a key battleground state that carries 10 electoral votes. Wisconsin State Sen. Chris Larson (D) said in a post on X that “[t]his is a huge win for democracy. We need to erase barriers to voting, not create arbitrary limitations out of thin air.”

The Wisconsin Elections Commission (WEC) — the entity responsible for administering the state’s elections — was a defendant in the litigation, but took the side of the plaintiffs by calling on the state Supreme Court to reverse Teigen. WEC, along with election officials who submitted an amicus brief in the case, emphasized the importance of drop boxes in providing voters with a convenient 24-7 option for returning their ballots, and protecting voters from disenfranchisement due to issues such as postal delays. 

WEC also highlighted the popularity of drop boxes in a court document, which citied the statistic that by spring 2021, 570 drop boxes were placed across 66 of Wisconsin’s 72 counties.

Wisconsin Gov. Tony Evers (D) intervened in the litigation and also asked the court to restore the use of drop boxes, which he described as a “secure” method for absentee ballot delivery that does not compromise “election integrity.” Although drop boxes were widely utilized in Wisconsin during the 2020 election, they became contentious in the post-election period as a result of efforts by former President Donald Trump and other candidates to sow doubt in election results and throw out lawfully cast absentee votes. 

Wisconsin’s Republican-controlled Legislature — which also intervened in the lawsuit — averred that drop boxes are not permitted under state law and that the court should let the Teigen decision stand. In the Legislature’s view, overruling Teigen just two years after it was decided would flout the “well-established principles of stare decisis” — a legal doctrine stipulating that courts should adhere to precedent. 

In line with the GOP Legislature’s arguments, the dissenting opinion — penned by conservative Justice Rebecca Grassl Bradley — maintained that the majority decision “tramples the doctrine of stare decisis” given that “[n]othing relevant has changed since this court decided Teigen two years ago.” Grassl Bradley, who was joined in dissent by the court’s two other conservative justices, accused the majority of trying to “advance its political agenda.” 

Following today’s ruling, the case will return to a Dane County trial court for further proceedings. 

Read the decision here.

Learn more about the case here.