Lawsuit challenges 'drop boxes' for ballots

Posted at noon on June 29, 2021

The Brillion News

WAUKESHA – 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 Waukesha County Circuit 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,

Absentee ballot drop boxes were used widely during Wisconsin elections in 2020.

[<< The lawsuit was filed on Monday, June 28, in Waukesha County Circuit Court.]

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 the WEC, ballot drop boxes could be unstaffed, temporary, or permanent.

WILL maintains that this advice was contrary to state law, which requires that “voting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place.”

The suit maintains that 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,” WILL said in a press release. “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.

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 on procedural grounds. Nevertheless, WILL said the state Supreme Court’s denial suggested the petition raised “novel and unresolved questions” that should be resolved in a proper case.

The WILL lawsuit also note that state law requires the voter – and not anyone else – is to return the completed absentee ballot.\

The March 202 memo to local clerks gave advance, the suit said, that is contrary to the law.

The memo said: “A family member or another person may also return the ballot on behalf of the voter.”

“Both the March 2020 memo and the August 2020 WEC Memo are incorrect statements of the law by WEC and have led to local election officials in Wisconsin administering elections incorrectly under Wisconsin law,” the WILL lawsuit said.

The lawsuit seeks a permanent injuction “requiring that WEC cease and desist from failing to enforce” the state law governing the return of absentee ballots.