Wisconsin Supreme Court To Consider Reinstating Ballot Drop Boxes for 2024
WASHINGTON, D.C. — The Wisconsin Supreme Court will hold oral argument on Monday to decide whether election officials can reinstate secure ballot drop boxes for the 2024 election.
At next week’s argument, the state Supreme Court’s majority-liberal bench will consider whether to overturn a July 2022 decision in Teigen v. Wisconsin Elections Commission, which resulted in a statewide prohibition on the use of drop boxes.
In Teigen, the court’s then-conservative majority held that drop boxes are unauthorized under Wisconsin law and concluded that voters may only return absentee ballots via mail or in person to a municipal clerk. “An inanimate object, such as a ballot drop box, cannot be the municipal clerk,” the opinion stated.
Monday’s argument stems from a lawsuit filed last summer by Priorities USA, the Wisconsin Alliance for Retired Americans and an individual voter challenging the state’s ban on drop boxes, among other restrictions on absentee voting.
Earlier this year, a Wisconsin trial court tossed out most of the lawsuit, prompting the plaintiffs to voluntarily dismiss their remaining claims and appeal directly to the state Supreme Court. In doing so, the organizations sought to bypass the court of appeals and resolve the case prior to the 2024 election.
In a March 12 order, a majority of the justices agreed to take up the sole question of whether the court should overrule its previous decision in Teigen, and concurrently paused all other absentee voting-related issues raised in the appeal.
At oral argument, the voting rights organizations will assert that Teigen was wrongly decided and that Wisconsin law does not explicitly prohibit the use of drop boxes. The groups contend that although Wisconsin’s statute governing absentee ballots requires that they either be returned via mail or in person to a municipal clerk, the law does not address where a municipal clerk can accept absentee ballots.
“Nothing prevents municipal clerks from agreeing to accept ballots at locations other than their own offices, including via secure ballot drop boxes placed elsewhere,” the organizations state in a court filing.
Wisconsin Gov. Tony Evers (D) intervened in the litigation and is also asking the court to restore the use of drop boxes, which he says are a “secure” method for absentee ballot delivery that do 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.
In urging the court to overrule Teigen and restore the use of drop boxes, Evers and the voting rights organizations emphasize how the state’s drop box ban has already adversely impacted Wisconsin voters and will — if left in place — continue to put them at risk of disenfranchisement in future elections.
According to a group of election officials who submitted an amicus brief in defense of drop boxes, only 0.05% of all absentee ballots were rejected for arriving late during the 2020 general election — an election in which voters heavily relied on drop boxes as a method of absentee voting. However, in the 2022 midterm elections, 0.36% of all absentee ballots were rejected for arriving late. The officials maintain that “[t]he prohibition on drop boxes in 2022 was likely a significant factor in increasing the number of late mail ballots.”
Drop boxes “help to ensure that submitted ballots get counted” in a timely manner and serve as an important “tool” in “minimizing the number of ballots that arrive late due to postal service delays,” the election officials highlight.
The Wisconsin Elections Commission (WEC) — the entity responsible for administering the state’s elections — is a defendant in the litigation, but is taking the side of the plaintiffs by calling on the state Supreme Court to reverse Teigen. “Drop boxes afford absentee voters important benefits: the ability to deliver ballots easily when a voter lives far from the clerk’s office and a ballot-return option open 24-7 for voters whose work or caregiving hours straddle the clerk’s office’s normal hours,” WEC argues.
On the other hand, Wisconsin’s Republican-controlled Legislature — which intervened in the lawsuit — avers 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 “make a mockery out of well-established principles of stare decisis” — a legal doctrine stipulating that courts should adhere to precedent.
The Republican National Committee, Wisconsin GOP and a right-wing legal organization known as Restoring Trust and Integrity in Elections filed an amicus brief in support of the Legislature’s arguments. “[The court] should reaffirm its commitment to stare decisis and hold—as it often does—that ‘the legislature is free to change’ the State’s absentee-voting laws if it disagrees with Teigen’s analysis,” the Republicans’ brief reads.
The Republicans’ stare decisis-rooted arguments stand out at a time when the conservative legal movement is engaging in a stark departure from established precedent in all manner of legal issues — from abortion rights to affirmative action.
The Wisconsin Institute for Law & Liberty — the right-wing legal group behind the Teigen case — also submitted an amicus brief that echoed the Legislature’s position. “Teigen decided the drop box question less than two years ago in a majority opinion that was—and still is—correct on the merits,” the group claims.
Meanwhile, all of the parties advocating for a reversal of Teigen refute the idea that stare decisis justifies leaving the 2022 decision in place. As WEC argues in a court brief: “Stare decisis is a core principle of our judicial system and critical to its stability. But it does not serve those purposes in situations where a decision was unsound at the outset and has proved unworkable…That is the case here.”
Following Monday’s oral argument, the Wisconsin Supreme Court will determine the fate of drop boxes in the Badger State ahead of the 2024 election. Regardless of whether the court overrules or upholds Teigen, its ultimate decision will have major implications for absentee voting in Wisconsin — a key battleground state that carries 10 electoral votes.