Debunking the Wisconsin Supreme Court’s Drop Box Opinion

On July 8, 2022, the Wisconsin Supreme Court released a 4-3 opinion banning ballot drop boxes in the state. The ruling originated from a case, Teigen v. Wisconsin Elections Commission, filed by the conservative activist group, Wisconsin Institute for Law & Liberty (WILL), in June 2021, seven months after Wisconsin held a successful, high-turnout election in the midst of the COVID-19 pandemic. 

The state is unique in its election administration; it vests this authority in a bipartisan body called the Wisconsin Elections Commission (WEC). In March 2020, the WEC issued guidance to local clerks outlining “options for ensuring that the maximum number of ballots are returned” for the upcoming primary election. The options included drop boxes and indicated that “clerks should ensure they are secure, can be monitored for security purposes, and should be regularly emptied.” Additionally, the WEC stated that “a family member or another person may also return the ballot on behalf of the voter.” 

The two guidelines in this memo — encouraging the use of ballot drop boxes and permitting a third party to return a ballot on behalf of another voter — were the target of WILL’s lawsuit. After winding up before the Wisconsin Supreme Court, conservative Justice Rebecca Grassl Bradley wrote a majority opinion that found that both ballot drop boxes and third-party ballot collection were not expressly authorized in Wisconsin law and thus were illegal. She was joined by three other conservative justices, although Justice Brian Hagerdorn split with the majority at several key, and most extreme, points. 

Today, we’re not rebutting the legal analysis — the dissent written by the other Justice Bradley on the court, liberal Justice Ann Walsh Bradley, did a good job at that — but we are identifying and responding to particularly harmful conclusions reached by the majority.

The illegality of these drop boxes weakens the people’s faith that the election produced an outcome reflective of their will. The Wisconsin voters, and all lawful voters, are injured when the institution charged with administering Wisconsin elections does not follow the law, leaving the results in question.

Justice Rebecca Grassl Bradley

When a state’s highest court calls all the ballots cast via drop boxes — a portion of the 1.9 million total absentee ballots cast in Wisconsin in 2020 — “unlawful votes,” that throws considerable doubt on electoral results that have been time, and time again, confirmed to be accurate. When placed in the context of the “Big Lie,” this rhetoric is even more dangerous. 

Immediately after President Joe Biden defeated former President Donald Trump in Wisconsin by over 20,000 votes, Wisconsin became the hotspot for anti-democratic efforts. In the post-election period, the Trump campaign filed a lawsuit seeking to invalidate 220,000 votes cast in the counties containing Madison and Milwaukee. The Wisconsin Supreme Court rejected that effort (though Grassl Bradley wrote a dissent that she repeatedly cites in this most recent decision). Additionally, Wisconsin Republicans sent their own slate of fake presidential electors and Assembly Speaker Robin Vos (R) spent close to $1 million taxpayer dollars on an investigation into the 2020 election. 

Since the Teigen opinion was released, state Rep. Timothy Ramthun (R) introduced a revised resolution in the Wisconsin Legislature to “decertify” Biden’s 2020 win in the state. Last week, Ramthum, who is also running for governor, wrote that the Wisconsin Supreme Court “once again vindicated” his efforts to reinstall Trump as president. “Decertification” is not a real nor constitutional process. On his social media site Truth Social, Trump himself wrote a flurry of posts following the Wisconsin Supreme Court’s decision. He has insisted this means he won the state and called on the Legislature to “do something” about this outcome.

Even if secured and monitored, a drop box falls short of the statutorily-recognized security surrounding a polling place.

Justice Rebecca Grassl Bradley

The majority read the relevant Wisconsin statute to only permit absentee ballots returned one of two ways: voters can deliver their own ballots in person to a municipal clerk or place their ballots in the mail. The majority found that the phrase “to the municipal clerk” in the statute meant an “inanimate object, such as a ballot drop box, cannot be the municipal clerk.”

The majority prohibit voters from placing their ballots in drop boxes, which have been specifically designed for this purpose. At the same time, the majority allows voters to place their ballots into mail boxes. This nonsensical distinction simply makes it harder for people to vote.

For voters concerned about privacy or delays with the U.S. Postal Service, ballot drop boxes are a convenient alternative. The U.S. Election Assistance Commission issued guidance on their use, calling a drop box a “secure, locked structure operated by election officials.” A recent study conducted by the Associated Press reinforced this conclusion: “None of the election offices in states that allowed the use of drop boxes in 2020 reported any instances in which the boxes were connected to voter fraud or stolen ballots. Likewise, none reported incidents in which the boxes or ballots were damaged to the extent that election results would have been affected.” Of the states responding to the survey, 15 employed drop boxes prior to the 2020 election.

As far as we can discern, [Disability Rights Wisconsin]’s argument largely rests on the practical impact…on disabled voters who may be physically unable to vote if someone cannot place an absentee ballot in the mail on a voter’s behalf…We address the argument no further.

Justice Rebecca Grassl Bradley

Disability Rights Wisconsin (DRW) is one of the intervenor groups in the case that sought to defend the two WEC guidelines. Remember, drop boxes were only one half of the lawsuit’s focus; the WEC also authorized that a designated individual or family member may return a voter’s signed and sealed ballot on the voter’s behalf. (Notably, the court did not rule on whether an individual can place an absentee ballot in the mail on another voter’s behalf; the court only prohibited an individual from placing another voter’s ballot in a drop box or delivering it in person to the clerk’s office.) 

The majority disregards the arguments advanced by DRW in defending the voter assistance portion of WEC’s guidance. This is common practice in many states, often called third-party ballot collection or community ballot collection, and thought of as a type of voter assistance. It is also pejoratively called “ballot harvesting,” as described in the Teigen plaintiffs’ briefs. The GOP has largely succeeded in its vilification of ballot collection, labeling this legitimate voter assistance as criminal, fraudulent activity without any evidence. 

Federal law already protects voters with disabilities to receive the assistance they need, but the decision will harm the communities that rely on ballot collection the most. DRW wrote that “returning a ballot ‘in person’ can be a practical impossibility” for “Wisconsinites for whom, due to their own age, illness, or disability, either permanent or intermittent, leaving their residence imposes a burden.” The majority opinion acknowledged this ruling could harm voters with disabilities and others who rely on voter assistance, but does nothing to address it.

As the law stands, WEC’s staff have absolute prerogative power. The constitution does not permit such corruption of the carefully calibrated powers among the branches of government.

Justice Rebecca Grassl Bradley

The above quote is from Grassl Bradley’s concurrence, not the lead opinion. She furthers an attack on the WEC that has become a fundamental pillar of the Wisconsin GOP’s platform. 

Over the past few decades, Republicans in the Wisconsin Legislature have stripped the secretary of state’s office of most of its authority and staffing. In 2015, the Legislature created the WEC with an act signed by former Gov. Scott Walker (R). Now, the very same individuals who created the commission are calling for it to be dismantled. All of the GOP candidates running for Wisconsin governor, including Rebecca Kleefisch (who served as lieutenant governor under Walker), have campaigned for the end of the WEC.

U.S. Sen. Ron Johnson (R-Wis.) wants the Republican-led Legislature to assert unilateral control of elections. “There’s no mention of the governor in the Constitution” in regards to federal elections, Johnson told the Milwaukee Journal Sentinel in November 2021. “It says state legislatures, and so if I were running the joint —and I’m not — I would come out and I would just say, ‘We’re reclaiming our authority. Don’t listen to WEC anymore. Their guidances are null and void.’” In Wisconsin’s fifth most populous county, the Trump-aligned sheriff suggested felony charges against five of the six members of the WEC for their guidelines.

The WEC is not without its troubles — one of the 10 fake electors from 2020 was vying for chair and failed — but the outsized focus on this administrative agency is representative of a broader attack on elections officials across the country. Historically, these election administration positions have been overlooked, technical and largely outside of the political sphere. Grassl Bradley contributes to undermining WEC’s authority; stripping power from election experts and giving it to partisan actors remains a very real threat to Wisconsin’s elections. 

The majority/lead opinion’s analysis… fans the flames of electoral doubt that threaten our democracy.

Dissenting Justice Ann Walsh Bradley

There’s plenty of absurdity to criticize within the majority’s writing. Full of catastrophizing language, the majority opinion greatly expands the bounds for who has the right to sue against election laws, in what the legal world calls standing. Grassl Bradley implies a comparison between Wisconsin’s 2020 election and the rigged, unanimous “elections” in Iraq, North Korea and Syria. She later cites William Shakespeare and Kanye West within the same page. 

But, what’s most concerning within these 141 pages is how a state’s highest court just eliminated a commonsense voting tool using warped legal reasoning to satisfy the calls of a failed former president. Slate reporter Mark Joseph Stern aptly called Grassl Bradley’s decision “a love letter to the Big Lie.” In a moment when political branches fail, we turn to the courts as a final protection for democracy. This shows the danger of when the courts fail us too.