Wisconsin Supreme Court changes course, will allow expanded use of ballot drop boxes this fall

MADISON, Wis. — The Wisconsin Supreme Court ruled Friday that state officials can place ballot drop boxes in their communities in this fall’s elections, overturning its own ruling two years ago that limited the use of ballot drop boxes in the swing state.

In July 2022, the court restricted the use of ballot boxes, restricting them to local election workers’ offices and prohibiting anyone other than the voter themselves from dropping off a ballot.

Conservatives held power over the court at the time, but Janet Protasiewicz’s election victory in April 2023, the court flipped to liberal control. Priorities USA, a progressive voter mobilization group, saw an opening and asked the court in February to reconsider the decision.

According to the US Vote Foundation, at least 29 other states allow mail-in ballot drop boxes. Their wider use in Wisconsin could have major implications for the presidential election.

Wisconsin is once again shaping up to be a crucial swing state, after President Joe Biden narrowly won the state in 2020 and Donald Trump narrowly won it in 2016. Democrats believe making it easier to vote by mail will boost turnout for their party.

The judges announced in March they would review the drop box ban but would not consider other aspects of the case. The move angered the court’s conservatives, who accused liberals of trying to give Democrats an advantage this fall. Democratic Gov. Tony Evers in April urged the court to allow dropboxes again.

The court ruled 4-3 on Friday that drop boxes can be used everywhere.

Justice Ann Walsh Bradley, one of the court’s four liberal justices, wrote for the majority that dropping a ballot in a drop box set up and maintained by a local election clerk is no different than giving the ballot to the clerk, regardless of the location of the box. Local clerks have broad discretion in how they administer elections, and that extends to the use and location of drop boxes, she added.

“Our decision today does not compel or require municipal officials to use drop boxes,” Bradley wrote. “It merely recognizes what (the state law) has always intended: that officials may lawfully use secured drop boxes in an exercise of their statutorily granted discretion.”

All three conservative justices dissented. Justice Rebecca Bradley wrote that the liberals were simply trying to advance their political agenda and criticized them for ignoring the precedent set by the 2022 ruling.

“The majority in this case reverses (the 2022 decision) not because it is legally incorrect, but because the majority finds it politically inconvenient,” Bradley wrote. “The majority’s activism marks another triumph of political power over legal principle in this court.”

The popularity of voting by mail exploded during the pandemic in 2020, with more than 40% of all voters casting ballots by mail, a record high. At least 500 drop boxes were set up in more than 430 communities for the election that year, including more than a dozen in Madison and Milwaukee — the state’s two most Democratic cities.

Trump and Republicans have claimed that drop boxes enable cheating, even though they have provided no evidence. Democrats, election officials and some Republicans have argued that the boxes are secure and a Associated Press Survey of U.S. election officials have found no instances of fraud, vandalism or theft that could have affected the 2020 results.

Republicans who control the Wisconsin Legislature intervened in the case, arguing that the justices should leave the 2022 ruling alone. Their attorney, Misha Tseytlin, did not immediately respond to an email seeking comment Friday.

Matt Fisher, a spokesman for the state Republican Party, called the decision a “setback.”

“This latest attempt by left-wing judges to appease their far-left supporters will not go unanswered by voters,” he said in a statement.

Dane County Clerk Scott McDonell, who administers elections in the state’s most Democratic county, called drop boxes a “common sense tool.” He said they make the election process easier and more convenient for rural and disabled voters and help reduce the number of ballots that arrive too late to be counted after Election Day.

“By installing drop boxes before the August and November 2024 elections, we encourage citizen participation in our democracy,” McDonell said in a statement.