Wisconsin Supreme Court Set to Hear Appeal of Court Decision that Absentee Ballot Drop Boxes Are Illegal

A pedestrian places a ballot in an official mail-in ballot drop box outside of the L.A. County Registrar’s office ahead of Election Day on October 14, 2020 in Norwalk, California. Over 1 million Californians have returned their mail-in ballots with Election Day over two weeks away, breaking the record for …
Mario Tama, Josh Edelson/Getty Images

The Wisconsin Supreme Court has agreed to hear an appeal of a circuit court’s January 13 decision “that held that [Wisconsin Election Commission’s] guidance on absentee ballot drop boxes [deployed statewide in the 2020 election] violates state law, and/or should have been adopted through the rulemaking process.”

The Wisconsin Institute of Law and Liberty (WILL) filed the case, Teigen v Wisconsin Elections Commission (WEC), in Waukesha County Circuit Court on behalf of two Waukesha County voters in June 2021.

The lawsuit challeng[ed] the legal status of absentee ballot drop boxes after WEC issued unlawful guidance to clerks, in 2020, encouraging the use of absentee ballot drop boxes, and telling voters that others can return their ballot for them.”

“This advice was contrary to state law,” WILL argued on behalf of the plaintiffs:

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.”

Waukesha County Circuit Court Judge Michael Bohren issued a summary judgment ruling on January 13 siding with the plaintiffs, as the Wisconsin Supreme Court recently noted:

On January 13, 2022, the circuit court conducted a hearing and issued an oral ruling granting summary judgment to the plaintiffs and denying the defendants’ request for summary judgment. The circuit court declared that the Commission’s guidance on these matters contravenes the statutes and that the guidance documents constituted administrative rules under Chapter 227, which were invalid because they were not duly promulgated as rules. The court directed the Commission to withdraw the disputed guidance and to advise the clerks, no later than January 27, 2022, that the guidance had been declared invalid.

The court then permanently enjoined the Commission from issuing future guidance conflicting with Wis. Stat. §§ 6.87 and 6.855. A written order incorporating this oral decision was entered on January 20, 2022.

But, as The Journal Sentinel reported on January 24:

An appeals court blocked a lower-court order Monday and ruled absentee ballot drop boxes can be used in the Feb. 15 primary.

The District 4 Court of Appeals issued its unanimous order a day before election clerks were scheduled to send voters absentee ballots in the race for Milwaukee mayor and other local contests in Wisconsin.

Monday’s decision affects only the Feb. 15 primary. The appeals court will decide later what rules will be in place for elections after that. . . The use of drop boxes expanded greatly in 2020.

On January 28, the Wisconsin Supreme Court allowed the appeals court stay to remain in effect until the February 15 primary, but granted WILL’s request to bypass the appeals court and go directly to the state’s highest court for a final decision in the case. The court requested written arguments on the case from attorneys for the plaintiffs by February 17, and attorneys for the defendants, including the WEC, by March 1.

The widespread use of drop boxes for the receipt of absentee ballots during the November 2020 election in the key battleground states where President Joe Biden eked out narrow victories – Wisconsin, Georgia, Michigan, Pennsylvania, and Arizona – has proven to be one of the most controversial of the many election integrity issues that have arisen from that pivotal presidential election.

In the Wisconsin 2020 presidential election, 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.”

Republicans and Trump supporters have argued the use of such drop boxes was of questionable legality at best, and was subject to massive voting irregularities that may have changed the outcome of the presidential election in those states, and consequently, for the entire national election.

Politico reported on Saturday that the Wisconsin case and a similar case pending in Pennsylvania, “could have a major effect on voting in two key states.”

The case is Teigen v Wisconsin Elections Commission (WEC), filed in Waukesha County Circuit Court, Docket Number 21CV958.

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