Ballot Drop Boxes Are Legal Again After Appeals Court Blocks Waukesha Judge’s Order

Three-judge panel says circuit court judge’s ruling comes too close to Feb. 15 primary.

Ballot drop boxes are once again legal in Wisconsin—at least through the Feb. 15 primary election—after an appeals court blocked an order from a Waukesha County judge that said the secured boxes could not be used in most cases.

A three-judge panel of the 4th District Court of Appeals noted the “confusion and possible disenfranchisement” of voters that could come because the drop box ruling was made “during an election process that is already underway.” Winners of the nonpartisan races next month advance to the spring general election in April.

The lawsuit, brought by the conservative Wisconsin Institute for Law and Liberty (WILL) on behalf of two men from suburban Milwaukee, claimed that since drop boxes are not specifically mentioned in election law, the Wisconsin Elections Commission (WEC) cannot give guidance about proper use. Judge Michael Bohren sided with WILL on Jan. 13 and refused last Friday to temporarily delay his order against drop boxes.

State Attorney General Josh Kaul, the WEC, the progressive legal group Law Forward, and others noted that some absentee ballots have gone out to voters already, and nearly 2,000 have already been returned under current WEC guidance.

“The potential for voter confusion and uncertainty in administration is apparent in this situation,” the judges wrote. “As the [Elections] Commission notes, there may be voters who have already deposited their absentee ballots in drop boxes or given their ballots to a spouse, caregiver, or other person to mail or to otherwise return to the clerk. If the current guidance is withdrawn at this stage of the election process, there is significant uncertainty as to whether these votes would be counted. Given this situation, the risk of confusion—and possible disenfranchisement—is compelling.”