Wisconsin Supreme Court asked to rule on ballot boxes

MADISON, Wis. (AP) — A conservative group Wednesday asked the Wisconsin Supreme Court to take over a legal challenge to absentee ballot boxes in Wisconsin and immediately lift a lower court’s ruling that kept current law in place.

The Wisconsin Institute for Law & Liberty made the filings with the conservative-controlled court. The move comes after a Waukesha County judge on Jan. 13 ruled that absentee ballot drop boxes cannot be located anywhere other than at offices of local clerks and that no one other than the voter may return such a ballot.

On Monday, the state appeals court sided with the Wisconsin Elections Commission and other voter rights groups and put the ruling on hold. The commission and others argued that disallowing absentee drop boxes so close to the Feb. 15 spring primary election would confuse voters and complicate the voting process.

The appeals court’s ruling put the lower court order on hold only until after the primary when the court was then going to consider the merits of the entire case. But in its filing Wednesday, WILL asks the Supreme Court to both lift the stay and take the entire case from the appeals court.

The Supreme Court in June refused to take a second legal challenge to ballot boxes before lower courts had heard the case brought by a conservative businessman. The Supreme Court has not yet responded to a separate request from former Lt. Gov. Rebecca Kleefisch, a Republican candidate for governor, to take a lawsuit she filed challenging ballot boxes.

Now the court is being asked for a third time to take the case, this time after a circuit court judge has ruled in the lawsuit brought by WILL, but the appeals court has not issued a decision.

“Wisconsin voters, candidates, and election officials deserve certainty on the legal methods to cast an absentee ballot,” said Rick Esenberg, president of WILL. “We are hopeful the Wisconsin Supreme Court will hear this urgent matter.”

Scott Thompson, an attorney with Law Forward, which is representing voting rights groups defending the case, said drop boxes are familiar to voters and already being used in the primary that’s less than three weeks away.

“Changing these rules, while the election is ongoing, is unfair to voters and contravenes clear direction from the Supreme Court of the United States,” Thompson said in a statement.

Elections commission spokesman John Smalley declined to comment, citing the ongoing lawsuit.

Wisconsin state law is silent on drop boxes, leading to a push from Republicans who control the Legislature to pass legislation specifying where they can be placed, or if they can be used at all. Democratic Gov. Tony Evers last year vetoed Republican bills that would have limited the location of absentee ballot drop boxes and who could return the ballots.

Republican Assembly Speaker Robin Vos refused to clarify where he stood on the issue Tuesday, after former President Donald Trump criticized efforts by Wisconsin Republicans to allow for a limited number of drop boxes.

The elections commission has advised that local clerks can put drop boxes wherever they want. Wisconsin’s top elections official testified last year that at least 528 drop boxes were used by more than 430 communities in the presidential election.

Waukesha County Judge Michael Bohren ruled two weeks ago that the elections commission had no legal authority to issue that guidance and ordered the memos it issued be withdrawn and not followed by local election officials.

His ruling was put on hold by the state appeals court, but only until after the spring primary. The appeals court said in its ruling that, according to the elections commission, nearly 8,400 absentee ballots have already been sent to voters, and many of those voters may have already deposited their ballots in drop boxes or given their ballots to someone else to mail in or return for them.

If the commission withdraws its guidance now it could create questions about whether those ballots would be counted, the appeals court said.

The Republican push against absentee ballot boxes comes after President Joe Biden’s win in battleground Wisconsin and after Republicans lawmakers had previously voiced support for their use. A Republican-ordered investigation into the election is ongoing, even after numerous lawsuits, recounts and other probes have upheld Biden’s victory and determined there was no widespread fraud.

Republicans have made similar moves since Trump’s defeat to tighten access to ballots in other battleground states. The restrictions especially target voting methods that have been rising in popularity and erecting hurdles to mail balloting and early voting that saw explosive growth earlier in the pandemic. More than 40% of all voters in the 2020 presidential election cast mail ballots, a record high.

The lawsuit brought by WILL in Wisconsin is opposed by the state elections commission, the Democratic Senate Campaign Committee, Disability Rights Wisconsin, Wisconsin Faith Voice For Justice and the League of Women Voters of Wisconsin.