Wisconsin’s top court signals it will reinstate ballot drop boxes
The court’s liberal majority could overturn a 2022 ruling that rendered drop boxes illegal in one of the nation’s most important swing states.
WAPO
MADISON, Wis. — Liberals who control the Wisconsin Supreme Court signaled Monday that they were prepared to overturn a two-year-old decision that banned absentee ballot drop boxes and allow them for the 2024 election.
The justices’ comments during oral arguments offered the latest sign that the liberal majority is prepared to act boldly and swiftly to change policies the conservatives put in place during their 15 years controlling the court in one of the country’s most important swing states. In December, the court struck down a redistricting plan that had helped Republicans maintain their lock on the state legislature.
Democrats and voting rights proponents have argued that ballot drop boxes are a secure and convenient way for voters to ensure their ballots count. Many Republicans have argued that ballots should be returned either in person or through the mail, while others have said they support drop boxes if there are rules on how many there are and where they are located.
Some right-wing critics have seized on conspiracy theories about how ballot drop boxes have been used in past elections, and in some states groups have staked out drop boxes to monitor who turns in ballots.
If the Wisconsin court overturns the ban on drop boxes, local governments will be allowed to use them but not required to do so. Many communities still have the drop boxes they used in 2020 and could make them available again if allowed by the justices. A decision is expected in the case by next month.
Drop boxes had been used in some Wisconsin communities for years, and they proliferated in 2020 as voters turned to absentee voting in unprecedented numbers because of the coronavirus pandemic. Both Republicans and Democrats in the state initially embraced their use. Republicans later turned against them and cheered on a lawsuit challenging their legality.
In 2022, the Wisconsin Supreme Court’s conservative 4-3 majority concluded that drop boxes are not allowed and barred their use for the midterms and subsequent elections. A year later, liberals took control of the court when Milwaukee County Circuit Judge Janet Protasiewicz was elected to replace a retiring conservative.
Within months, the new majority accepted a case seeking to overturn the 2022 decision. Liberal justices made clear at Monday’s arguments that they were ready to do that. More than half of U.S. states allow the use of ballot drop boxes, according to the National Conference of State Legislatures.
Liberal Justice Jill Karofsky cited an unexpected rationale for overturning the ban on drop boxes — the U.S. Supreme Court’s 2022 decision reversing the constitutional right to seek an abortion. She noted that conservative Justice Samuel A. Alito wrote that precedents could be overturned if they are “egregiously wrong.”
“This notion that the decision is egregiously wrong from the start, that its reasoning was exceptionally weak, that the decision has had damaging consequences — I see this as check, check, check here,” Karofsky said.
Other liberals also showed an openness to overturning a recent precedent. Protasiewicz, the newest member of the court, noted that Republican state lawmakers were arguing that the decision not be overturned even though they had repeatedly called for reversing other decisions when conservatives controlled the court. Liberal Justice Ann Walsh Bradley emphasized that courts could overturn precedents when they are “unsound” and “unworkable.”
Liberal Justice Rebecca Dallet said the decision that banned drop boxes rested on the “untenable” notion that government officials and others could take actions only if they are explicitly permitted in state law.
“There is no way, even when our statute books are quite long and there are quite a few of them, that you could possibly ever encompass every tiny little thing that ever existed in any realm, especially in election law, when we have a decentralized system,” Dallet said.
Misha Tseytlin, an attorney for Republican state lawmakers, said the court needs to stick with the 2022 decision because the legislature has not changed the law and no new significant facts have come to light.
Voters will choose a new justice next year because Bradley is retiring, and that could change which faction controls the court. If the court reverses course, Tseytlin noted, “we’re going to be back here again.”
A similar dynamic is playing out on North Carolina’s top court, but with the ideological roles reversed. Republicans gained control of that court from Democrats in the 2022 elections and soon afterward overturned rulings on redistricting and voter ID.
In Wisconsin, conservative Justice Rebecca Bradley raised concerns about how far a decision allowing drop boxes could go, asking attorneys for the group that brought the lawsuit whether they wanted a decision that would allow voters to return absentee ballots in other ways.
“An unsecured bag? A cardboard box? A van that goes around picking up ballots? What is the limiting principle of what you’re asking this court to rule?” asked Bradley, who is not related to the liberal justice with the same last name.
Attorneys arguing to overturn the 2022 decision said election officials would adhere to a state law that requires them to run secure elections.
