Wisconsin Supreme Court bans ballot drop boxes

Ballot drop boxes

The Wisconsin Supreme Court ruled last week that ballot drop boxes are illegal in the state under their interpretation of a state election law.

With the necessity of pandemic restrictions and safety precautions during the 2020 election, the bipartisan Wisconsin Election Commission issued guidance in 2020 allowing municipal clerks to set up drop boxes across the state. No one challenged this practice until last year, when the far-right conservative group Wisconsin Institute for Law and Liberty (WILL) filed a lawsuit alleging that drop boxes violate state law.

WILL argues that Wisconsin Statute § 6.87(4)(b)1, stating that ballots “shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots,” means that there are only two legal means to return ballots: (1) by mail or (2) by delivering the ballot directly into the hands of the municipal clerk. Ballot drop boxes, by this argument, are not permitted.

The majority of the Wisconsin Supreme Court, made up of three hard-right justices and one swing justice, ruled that because § 6.87 does not include the word “ballot boxes,” the Wisconsin Election Commission’s authorization was unlawful.

Existing outside the statutory parameters for voting, drop boxes are a novel creation of executive branch officials, not the legislature. The legislature enacted a detailed statutory construct for alternate sites. In contrast, the details of the drop box scheme are found nowhere in the statutes, but only in memos prepared by WEC staff, who did not cite any statutes whatsoever to support their invention…

The fairest interpretation of the phrase “to the municipal clerk” means mailing or delivering the absentee ballot to the municipal clerk at her office…WEC would have us believe, hiding within four words, “to the municipal clerk,” is an expansive conception of voting methods never before recognized. We decline to read into the statutes a monumentally different voting mechanism not specified by the legislature.

Further, the majority ruled that voters can not give their completed absentee ballots to others to return to election clerks on their behalf:

“[I]n person” denotes “bodily presence” and the concept of doing something personally. in person, The Oxford English Dictionary 598 (2d. ed. 1989) (defining “in person” as “with or by one’s own action or bodily presence; personally; oneself”); Person, Webster’s Third New International Dictionary 1686 (2002) (“bodily presence —— usu. used in the phrase in person”); in person, The Random House Dictionary of the English Language 1445 (2d ed. 1987) (“in one’s own bodily presence; personally; Applicants are requested to apply in person.”). ¶75 As used throughout Wisconsin’s election code, the phrase “in person” refers to a voter acting directly, not through an agent…

Reading the election statutes in context and as a whole, we conclude an absentee ballot delivered in person under Wis. Stat. § 6.87(4)(b)1. must be delivered personally by the voter.

In writing for the court, Justice Grassl Bradley cast doubt on the 2020 election, suggesting that since it was conducted with drop boxes, the results are illegitimate. “The failure to follow election laws is a fact which forces everyone,” she wrote, “to question the legitimacy of election results.”

If elections are conducted outside of the law, the people have not conferred their consent on the government. Such elections are unlawful and their results are illegitimate…The illegality of these drop boxes weakens the people’s faith that the election produced an outcome reflective of their will. The Wisconsin voters, and all lawful voters, are injured when the institution charged with administering Wisconsin elections does not follow the law, leaving the results in question.

The 2020 election, using drop boxes, was “unlawful,” so the results—and, specifically, Biden’s victory—are “illegitimate.”

Justice Ann Bradley, writing for the dissent, points out that the majority incorrectly interpreted § 6.87(4)(b)1 by adding a word—“office”—to the statute:

[The majority] interprets the phrase “to the municipal clerk” to mean “mailing or delivering the absentee ballot to the municipal clerk at her office”…If the legislature wanted to require return of a ballot to the clerk’s office, it certainly could have done so… But the legislature did not do that. Instead, it indicated that the ballot be delivered “to the municipal clerk,” not to the clerk’s office. Conflating “municipal clerk” with “office of the municipal clerk” is not——as the majority/lead opinion claims——the “fairest interpretation” of the statute. Instead, it is a rank distortion of the statutory text.

Can delivery to a drop box constitute delivery “to the municipal clerk?” Absolutely. A drop box is set up by the municipal clerk, maintained by the municipal clerk, and emptied by the municipal clerk. This is true even if the drop box is located somewhere other than within the municipal clerk’s office. As stated, the “municipal clerk” in the statutes is a person, and the “office of the municipal clerk” is a location. Applying this principle, there is nothing in the statute that even hints that unstaffed drop boxes are impermissible. Rather, a drop box, which the clerk or the clerk’s designee sets up, maintains, and empties, is simply another way to deliver a ballot “to the municipal clerk.” The majority/lead opinion’s attempt to avoid the statute’s plain language fails.

The majority’s opinion, Bradley wrote, “blithely and erroneously seeks to sow distrust in the administration of our elections and through its faulty analysis erects yet another barrier for voters to exercise this ‘sacred right.’”

Gableman investigation

The majority’s conspiracy-laden opinion comes as the Republican-appointed special counsel investigating the 2020 election results was held in contempt of court for flouting a court order.

Michael Gableman, a former Supreme Court justice himself, was hired by Wisconsin GOP lawmakers after Biden’s inauguration to review how the presidential election was conducted. After admitting that he “do[es] not have a comprehensive understanding or even any understanding of how elections work,” Gableman released an interim report that endorsed debunked claims of fraud and erroneously proclaimed that the legislature has the power to decertify Biden’s victory.

The probe has been beset by legal challenges since the outset, the most successful of which were brought by watchdog American Oversight for Gableman’s refusal to comply with the state’s Open Records Law. Three judges have ordered Gableman to cease deleting records related to his investigation after he admitted in open court that he regularly gets rid of records that he deems to be irrelevant.

After months of failing to comply, Dane County Judge Frank Remington condemned Gableman’s behavior and held him in contempt of court, with fines of $2,000 a day until he complies. During the June hearing, Gableman insulted the American Oversight attorney, Christa Westerberg, and Judge Remington, before invoking his 5th Amendment right not to incriminate himself (clip).

“The transcript of these events does not tell the whole story,” Remington wrote. “It does not show Gableman’s raised voice, his accusatory tone and his twisted facial expression. It does not show that as he spoke, he pointed and shook his finger at the judge. If Gableman’s behavior on the witness stand was not enough, during a short recess, he made clear what he thought of the judge and opposing counsel,” referring to comments by Gableman that were picked up by a courtroom microphone in which he insulted both Remington and Westerberg.

For part of his order, Remington defends Westerberg and criticizes Gableman’s attack on her as sexist.

“Gableman’s conduct was an affront to the judicial process and an insult to Atty. Westerberg, by their very suggestion that she is not capable of litigating without the help of the judge,” he wrote. “The sophomoric innuendo about Atty. Westerberg coming back to chambers is a sad reminder that in 2022, woman lawyers still have to do more than be excellent at their job.”

Governors’ appointments

The Wisconsin Supreme Court also ruled last week that the Republican chair of the Wisconsin Department of Natural Resources (DNR) board, whose term ended last year, does not have to step down.

The case centers on Fred Prehn, a dentist appointed to the DNR board in 2015 by former Republican Gov. Scott Walker. Prehn’s six-year term came to an end in May of last year but he refused to step aside, arguing that a state Supreme Court ruling from 1964 allows him to stay in office until the Senate confirms a replacement. Current Democratic Gov. Tony Evers appointed Sandy Naas, a wildlife biologist and teacher, to the position but the Republican legislature refused to confirm her. Therefore, Prehn argued that he did not have to resign from the board.

Democratic Attorney General Josh Kaul sued to try to force Prehn out of his position. The state Supreme Court ruled against the governor’s administration 4-3, finding that “Prehn lawfully retains his position on the DNR Board as a holdover…[u]ntil his successor is nominated by the Governor and confirmed by the senate.”

Prehn’s refusal to leave, with the Senate’s refusal to confirm a replacement, ensures that Republican members maintain a majority on the DNR board and can control environmental policy for at least another year, if not longer.

At first glance, obstruction of a nomination to the DNR board may not seem like the most consequential news in a timeline filled with a January 6th insurrection and domestic extremism. However, Wisconsin Republicans have been wildly successful at preventing the Democratic governor from exercising his legal power to appoint nominees, thereby seizing control of the government from the executive office. For example, the state Senate has also declined to confirm nine appointees to the University of Wisconsin System Board of Regents and rejected Gov. Evers’ qualified nominee to lead the state Department of Agriculture.

Pfaff, who served as deputy administrator for farm programs in the U.S. Department of Agriculture under former President Barack Obama and most recently was deputy chief of staff for U.S. Rep. Ron Kind, D-La Crosse, drew the ire of some Republicans in July when he criticized the Legislature’s budget committee for failing to release funds for mental health assistance to farmers and their families.

Democratic backsliding

Wisconsin is a microcosm of the larger democratic-backsliding across America, where courts assist legislatures in undermining the will of the people. Earlier this year, the Wisconsin Supreme Court approved heavily gerrymandered redistricting maps that further tilted control of the legislature in favor of Republicans. And that’s not to say that the GOP didn’t already have an advantage prior to this redistricting cycle: In the 2018 election, Republicans won 45% of votes cast in state Assembly elections but took 65% of its seats.

What the Republican legislature is doing is expressly going against the will of the voters, who chose Evers to govern their state. It is part of a pattern of elected officials creating conditions wherein they cannot be voted out of office, installing judges who will allow their mini-autocracy to function, and obstructing the policies of anyone who disagrees with their blatant power grab.