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Wisconsin Supreme Court reconsiders legality of absentee drop boxes • Wisconsin Examiner

The Wisconsin Supreme Court on Monday heard oral arguments in a case that could once again allow the use of drop boxes for the return of absentee ballots. 

Drop boxes were prohibited by the Court in 2022 when the body’s then-conservative majority decided in Teigen v. Wisconsin Elections Commission that state law only allowed for absentee ballots to be brought directly to municipal clerks, not to unmanned drop boxes. 

Ballot drop boxes had been used in Wisconsin for decades, largely with slots or boxes at municipal buildings, however in 2020 they surged in popularity as voters searched for ways to safely vote during the COVID-19 pandemic. A Waukesha County voter sued the elections commission, arguing that it had given unlawful guidance to clerks on the permissibility of the boxes. 

Following the 2020 election, conservatives turned on the use of the boxes, arguing they were vulnerable to fraud and abuse. The boxes had been used all across the state, in both rural and urban areas, but conservatives argued they opened the state’s elections up to the possibility of “ballot harvesting.”

In the Teigen case, the Court found that because state law didn’t explicitly permit drop boxes, they’re not allowed. The decision prompted former President Donald Trump to again claim that he had won Wisconsin in 2020, stating that all ballots that had been dropped into the boxes were illegal and shouldn’t have been counted. 

Earlier this year, the national Democratic group Priorities USA brought a lawsuit challenging the Teigen decision, asking the now-liberal controlled Court to overturn its previous decision. Gov. Tony Evers and Attorney General Josh Kaul joined the case, arguing for the use of drop boxes, while the Republican-controlled Legislature joined to argue drop boxes should remain outlawed. 

On Monday, the arguments centered around the confusion that the Teigen decision has caused in the state’s election administrations, what limits there are to municipal clerk authority to run elections and if the Court should take the step of overturning a previous decision. 

David Fox, the attorney for Priorities USA, argued that the Teigen decision points a “loaded gun” at the state’s election administration, giving any voter the green light to challenge any practice by municipal clerks that isn’t explicitly allowed in statute. 

“People will not see a problem, clerks will not see a problem, voters will not see a problem,” Fox said. “Everyone will take action that seems to everyone at the time like a perfectly legitimate action. And then after an election, someone is going to come to this clerk and they’re going to say ‘Wait, where’s the express authorization? All of those ballots need to be cast out.’”

“It is an enormous problem from this Court’s decision in Teigen because if everything needs to be expressly authorized, on pain of discarding ballots, that is a loaded gun,” he continued. 

Many of the liberal justices on the Court appeared to side with Fox, questioning how the Teigen decision is the only place in the law in which something has to be explicitly allowed for it to be legal. The attorneys arguing for the use of drop boxes said that state law gives municipal clerks the authority to run elections for their communities, giving broad authority to make hundreds of decisions on their own, so why can’t they decide to set up a drop box. 

“We operate in the law with a general concept, when the Legislature writes a statute, things are permitted unless they’re forbidden,” Justice Rebecca Dallet said. “There’s no way, even though our statute books are quite long, and there are quite a few of them, you could possibly ever get every tiny little thing that ever existed in any realm, especially in election law. When we have a decentralized system of clerks — as was already stated — making hundreds of decisions every single day with respect to elections, if something is not explicitly stated in the statute, then it can’t be done? That’s the principle that turns everything else on its head.” 

But the Court’s conservative justices responded to that argument by asking for the limiting principle. Wisconsin’s statutes say that absentee voting is subject to more rules and requirements than in-person voting because it is a “privilege” but If state law gives clerks the authority to decide whether or not to use a drop box, where does that authority end, the justices asked. 

“You’ve argued that municipal clerks are free to decide where and how they would accept delivery of returned absentee ballots,” Justice Rebecca Bradley, who wrote the Teigen decision, said. “So it sounds like the holding you’re looking for from this court is not restricted to the use of drop boxes. So what limiting principle are you offering the court or are you suggesting … you’re asking this court to give municipal clerks absolutely free rein to disregard the carefully regulated regime established by the people’s representatives in the Legislature, and they can do whatever they want?” 

Fox said that clerks are elected officials who are accountable to their voters, so the limiting principle is losing their position. 

The justices were also weighing whether or not they should take the step of overturning a previous precedent. The liberal justices, arguing that the structure of Teigen makes no sense, pointed to the many times Misha Tseytlin, the attorney for the Legislature, argued in front of the Court for precedent to be overturned. 

“You are talking to us about the importance of precedent, and I think it’s very important,” Justice Jill Karofsky said. “I think stability in the law is very, very important. In Teigen, what if we just got it wrong? What if we made a mistake? Are we now supposed to just perpetuate that mistake into the future?” 

Tseytlin said that if the Court overturns Teigen now, it’s likely he’d be back in front of the Court the next time its composition changes, arguing for the decision to be flipped back. 

“I can guarantee you that if you if the dissent in Teigen becomes the majority in this case, that when the Court’s composition changes in a year, the new dissenters are going to think the majority’s decision was unsound in principle under this new ‘we just disagree standard,’” said Tseytlin, assuming the results of next year’s Supreme Court election will restore a  conservative majority. “And we’re going to be back here again to determine whether, as a statutory matter, drop boxes are allowed and maybe the Court’s composition will flip the next year and we’ll be back here the fourth time.”

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originally published at https%3A%2F%2Fwisconsinexaminer.com%2F2024%2F05%2F13%2Fwisconsin-supreme-court-reconsiders-legality-of-absentee-drop-boxes%2F by Henry Redman

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