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WI Supreme Court Justices Uncertain About Legalities Surrounding Ballot Drop Boxes

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OPINION: This article may contain commentary which reflects the author's opinion.


Wisconsin Supreme Court justices expressed some skepticism on Wednesday over whether state law permits voters to hand their absentee ballots to a third party to return or whether ballot dropboxes are allowed to be placed outside municipal clerk offices.

According to The Associated Press, the state high court’s ruling, which is expected by late spring or early summer, will establish rules for the upcoming midterm election which will feature contests involving Wisconsin’s Democratic governor and a Republican U.S. senator who are both on the ballot.

The AP adds:

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The court in February barred the use of drop boxes outside election clerk offices for the April spring election where local offices such as mayor, city council, and school board were decided. But the larger question the court has yet to address is whether to allow the secure ballot boxes going forward in places such as libraries and grocery stores.

The fight is being closely watched as Republicans push to limit access to absentee ballots following President Joe Biden’s 2020 win in Wisconsin, beating Donald Trump by just under 21,000 votes. Wisconsin Gov. Tony Evers and U.S. Sen. Ron Johnson are on the ballot in November.

State law is silent on drop boxes, but the bipartisan Wisconsin Elections Commission has told local election officials they can be placed at multiple locations and that ballots can be returned by people other than the voter.

Justice Brian Hagedorn, a conservative-leaning jurist who at times sides with the court’s liberal minority, honed in on what it actually means to deliver a ballot and if the wording in the current statute actually allows for someone other than the voter to return them.

“If I’m mailing an absentee ballot and my wife takes the three steps to put it in the mailbox, have I violated the law?” Hagedorn asked. “Do we need to decide that question?”

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Rick Esenberg, an attorney and president of the conservative law firm Wisconsin Institute for Law & Liberty, which brought the lawsuit, responded that the question did not need to be addressed at all. In responding to questions, he also said he didn’t think it would be legal to give a ballot to a family member within a few feet of a mailbox and then have that person drop it in.

“I’m sure you can appreciate how absurd that result is,” noted liberal Justice Jill Karofsky.

Hagedorn also wanted to know if a ballot would be considered to be delivered “in person” if the voter had it turned in by a representative of a political party. An attorney for the Democratic Senate Campaign Committee, Charles Curtis, noted he believed that would be legal as long as the ballot wasn’t altered in any way.

But conservative Justice Rebecca Bradley indicated that she did not believe the law would allow for anyone other than the voter to turn in an absentee ballot.

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“Advocates for people with disabilities and others argue that not allowing someone other than the voter to return a ballot makes it more difficult for voters who have limited mobility or other physical impairments,” The AP reported, adding that Hagedorn asked exactly where absentee ballot drop boxes could be placed and still conform with the law.

“I think it’s really important that we define this carefully and not generically,” he said.

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The newswire added:

In January, Hagedorn sided with liberals and put on hold a lower court’s ruling barring drop boxes outside clerk offices for the February primary. But in February, Hagedorn reversed and sided with the conservative majority in reinstating the lower court’s ruling that put the ban in effect for the April election and beyond pending the Supreme Court’s ruling.

The elections commission rescinded its guidance pending the outcome of the Supreme Court’s ruling.

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