Absentee ballot drop boxes, which saw increased use in several communities including Madison last year amid the ongoing COVID-19 pandemic, are not allowed under state law, a Waukesha County judge ruled Thursday.
Judge Michael Bohren also granted a request from the conservative law firm Wisconsin Institute for Law and Liberty, which brought the case, prohibiting the Wisconsin Elections Commission from issuing guidance allowing for the use of drop boxes. The ruling means such boxes will not be allowed in the the Feb. 15 spring primary.
A small percentage of voters and witnesses made mistakes on their absentee ballot certificates in 2020. Here are some examples of the kinds of errors that were either allowed or corrected by the clerk in order to permit the ballot to be counted.
The lawsuit was filed in Waukesha County on behalf of two residents and challenged the commission’s guidance to clerks in 2020 that drop boxes can be unstaffed, temporary or permanent.
Bohren ruled that the state’s bipartisan elections commission should have gone through the formal rulemaking process, rather than issuing guidance to local election officials.
“They have the effect of law,” Bohren said regarding the commission’s guidance. “(Clerks) are going to rely on it as a statement of law.”
WILL’s lawsuit was filed three days after the state Supreme Court in a 4-3 ruling turned back a separate attempt by a major Republican donor to ban the boxes.
While it’s likely attorneys could appeal Bohren’s ruling, the Wisconsin Supreme Court also could take up the issue in a lawsuit filed last year by Republican gubernatorial candidate and former Lt. Gov. Rebecca Kleefisch challenging the commission’s guidance on drop boxes. The state’s high court has not said if it will take up the case before it goes through lower courts.
