Lawsuit Filed in Wisconsin Challenging Legality of Drop Boxes for Absentee Ballots

Election inspector Taquaine Mason observes as a voter drops his ballot into the box during early in-person voting, Thursday, Oct. 29, 2020, in Cambridge, Mass. (AP Photo/Elise Amendola)
AP Photo/Elise Amendola

Three days after the Wisconsin Supreme Court refused on Friday to hear a case challenging the legality of the use of drop boxes for absentee ballots in the 2020 presidential election, a conservative nonprofit law firm filed another challenge to that practice.

In a statement announcing the lawsuit on Monday, the Wisconsin Institute of Law and Liberty stated that “state law provides just two methods for casting an absentee ballot,” and depositing an absentee ballot in a drop box is not one of those methods.

the statement released by WILL on Monday said:

The Wisconsin Institute for Law & Liberty (WILL) filed a lawsuit in Waukesha County Circuit Court, on behalf of two Waukesha County voters, challenging the legal status and advice from the Wisconsin Elections Commission (WEC) on the use of ballot drop boxes. WILL is asking the court for a declaratory judgment that makes clear that there are just two legal ways to cast an absentee ballot in Wisconsin: through the U.S. mail or delivered in person to the municipal clerk,

“Wisconsin voters deserve certainty that elections are conducted fairly and in accordance with state law. But the Wisconsin Elections Commission is giving advice to clerks that is contrary to the law, putting the ballots of countless voters at risk.” WILL President and General Counsel, Rick Esenberg said in the statement.

Monday’s statement by WILL continued:

Absentee ballot drop boxes were used widely during Wisconsin elections in 2020. The Wisconsin Elections Commission (WEC) issued memos to Wisconsin clerks in March and August of 2020 encouraging their use, stating that absentee ballots do not need to be mailed by the voter or delivered by the voter, in person, to the municipal clerk, but instead could be dropped into a drop box. According to WEC, ballot drop boxes can be unstaffed, temporary, or permanent.

This advice was contrary to state law. Voting is a constitutional right, but state law makes clear that, “voting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place.” There are just two legal ways in Wisconsin to submit an absentee ballot. When voting by absentee ballot, state law says “[t]he envelope [containing the ballot] shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.”

An unstaffed, unsupervised absentee ballot drop box does not meet either of these legal options. And it raises significant concerns that elections are not being conducted legally and that Wisconsin voters will not have certainty that their votes will be counted if cast in this manner.

The Wisconsin Supreme Court in Trump v. Biden did not weigh in on the legal status of absentee ballot drop boxes due to the timing of the lawsuit – after the November 2020 election. And a petition for original action to the Wisconsin Supreme Court asking for a review of the legal status of absentee ballot drop boxes was recently denied in June 2021 on procedural grounds. Nevertheless, the Court’s denial suggested the petition raised “novel and unresolved questions” that should be resolved in a proper case.

The National Conference of State Legislatures reports that as of June 30, 2021, Wisconsin is not among the 12 states where the use of drop boxes to deposit absentee ballots in elections is statutorily authorized by the state legislature. (Note, during the November 2020 election, apparently only eight states were statutorily authorized to use drop boxes for the deposit of absentee ballots.)

On Friday, the Milwaukee Journal Sentinel reported the Wisconsin Supreme Court refused to hear a different, previously filed election lawsuit challenging the legality of absentee ballot drop boxes in a four to three vote:

The majority concluded the lawsuit put forward important questions but said it wouldn’t take the case because the issues it raised were not “cleanly presented.” The legal standards that should guide the justices were not clear, the majority wrote.

“While this court must not shrink back from deciding challenging or politically fraught questions properly before us, neither should we be eager to insert ourselves at the expense of time-tested judicial norms,” the majority wrote in its unsigned opinion.

In dissent, Justice Patience Roggensack maintained the majority was avoiding addressing difficult issues.

As Breitbart News reported, Joe Biden was certified the winner in the 2020 presidential election in Wisconsin by a margin of less than 21,000 votes, and the state’s ten Electoral College votes were consequential in the outcome of the election.

Biden was declared the winner of the 2020 presidential election when a joint session of Congress convened on January 6-7, 2021, and counted 306 Electoral College votes for Biden and 232 for Trump.

Had Trump won Arizona’s 11 electoral college votes (where Biden’s margin of victory was less than 11,000 votes), Georgia’s 16 electoral college votes (where Biden’s margin of victory was less than 12,000 votes), and Wisconsin’s 10 electoral college votes (where Biden’s margin of victory was less than 21,000 votes), the Electoral College contest would have been a 269 to 269 tie, which would have thrown the election into the House of Representatives, where each state delegation has one vote.

The role played by the Mark Zuckerberg-funded Center for Technology and Civic Life (CTCL) in Wisconsin during the 2020 presidential election, and its heavy promotion of the use of absentee ballots and drop boxes, has been highly controversial, as Breitbart News reported in May:

Wisconsin is one of several key battleground states where the conduct of the CTCL and the Center for Innovation and Election Research (CEIR), another Zuckerberg-funded nonprofit, in the 2020 election has come under scrutiny, as Breitbart News reported:

Private funding of election administration was virtually unknown in the American political system until the 2020 presidential election, when Facebook CEO and founder Mark Zuckerberg and his wife Priscilla Chan donated $350 million to the Center for Technology and Civic Life (CTCL), which provided funding to county and municipal governments around the country for election administration, and $69 million to the Center for Election Innovation and Research (CEIR), which provided funding to 23 state governments, primarily through the Secretary of State’s office, also for the funding of election administration.

In Wisconsin, the CTCL provided more than $6 million in local funding for the administration of the 2020 election, most of it going to five cities, known as the “Wisconsin 5,“–Milwaukee, Madison, Green Bay, Kenosha, and Racine–as Wisconsin Spotlight reported in April:

[W]hat the grant money really purchased in battleground states like Wisconsin was the infiltration of the November presidential elections by liberal groups and Democratic activists, according to hundreds of pages of emails and other documents obtained by Wisconsin Spotlight.

In the city of Green Bay, which received a total of $1.6 million in grant funding from the Zuckerberg-funded Center for Tech and Civic Life, a “grant mentor” who has worked for several Democratic Party candidates, was given access to boxes of absentee ballots before the election. Michael Spitzer-Rubenstein, Wisconsin State Lead for the National Vote at Home Institute, in many ways became the de facto city elections chief.

The emails show Green Bay’s highly partisan Democrat Mayor Eric Genrich and his staff usurping city Clerk Kris Teske’s authority and letting the Zuckerberg-funded “grant team” take over–a clear violation of Wisconsin election statutes, say election law experts.

This month, Wisconsin Spotlight reported:

Six Kenosha residents have filed a complaint with the Wisconsin Elections Commission alleging the city allowed Mark Zuckerberg-funded, liberal groups to take over November’s election.

The action is the latest in a growing number of election law complaints against the “famous Wi-5” — Milwaukee, Madison, Green Bay, Kenosha and Racine. But unlike in Green Bay, where the city’s clerk challenged the infiltration of the outside groups and meddling city officials, new emails show election officials in the other four Democratic Party strongholds were glad to go along for the well-funded ride.

The emails, obtained by Wisconsin Spotlight, show just how deeply entrenched the Chicago-based Center for Tech and Civic Life’s network of left-wing “partners” was in the administration of elections in the five cities. And just how partisan the activists are.

The MacIver Institute reported this month on issues of legal authority and propriety surrounding the use of CTCL grant funds in Milwaukee’s administration of the 2020 election:

Newly released emails paint a disturbing picture of how the City of Milwaukee ran the 2020 presidential election and again call into question the legality of liberal-leaning interest groups’ deep infiltration of municipal procedure. . .

It quickly became clear that this money came with strings attached.

According to the agreement the City of Milwaukee signed with CTCL, CTCL set the ground rules for how every penny of the money was to be spent, and Milwaukee was not allowed to “reduce or otherwise modify planned municipal spending on 2020 elections.” In addition, the city was not permitted to “use any part of [the] grant to give a grant to another organization unless CTCL agrees to the specific sub-recipient in advance, in writing.”

The case filed by WILL on Monday is Teigen v. Wisconsin Election Commission, filed in Waukesha County Circuit Court, Docket Number 21CV958.

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