drop box
Bernie Hoefgen of Eau Claire made sure his vote counted by taking his absentee ballot to the ballot drop box outside of City Hall in downtown Eau Claire on October 21, 2020. (Photo by Doug Mell)

Conservatives debate the definitions of a box and determine a mailbox is allowed, while a secure, convenient drop box is not.

Embracing  reckless and untrue rumors perpetuated by insurrectionists and other 2020 election deniers, conservative justices on the Wisconsin Supreme Court decided Friday to affirm a ban on secure ballot drop boxes—long a trusted mainstay of Republican get-out-the-vote efforts until they became a scapegoat for former President Donald Trump.

The four conservatives justices ruled in favor of the right-wing legal organization Wisconsin Institute for Law and Liberty (WILL), which filed a lawsuit last year challenging the legality of dropboxes.  The lawsuit was prompted by Trump’s defeat in Wisconsin during the 2020 election, which saw more than 40% of the state’s voters cast absentee ballots as a way to stay safe during the coronavirus pandemic that has killed more than 1 million Americans, including 13,164 Wisconsinites.

The majority’s legal logic was rooted in the fact that drop boxes are not explicitly mentioned in the state statutes that form the basis for guidance that the Wisconsin Elections Commission (WEC) provides to local election clerks. But the court’s three progressive justices, clerks, and some Republicans have maintained that WEC and local clerks are given broad discretion under state law to administer elections as opposed to having to adhere to a top-down, micromanaged (some conservatives would say “big government”) approach. 

“Can delivery to a drop box constitute delivery ‘to the municipal clerk?’—Absolutely,” wrote progressive Justice Ann Walsh Bradley in the dissenting opinion. “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. There is nothing in the statute that even hints that unstaffed drop boxes are impermissible.”

There were actually four majority opinions written, as three conservatives sought to add their own concurrent interpretations or observations beyond the main ruling from right-wing Justice Rebecca Bradley [no relation to the progressive Justice Bradley], which included dangerous and baseless allegations of illegal voting activity in 2020. Her opinion represents a continuation of the Republican effort to reduce public trust in election integrity by spreading lies that reduce public trust in election integrity.

“The record indicates hundreds of ballot drop boxes have been set up in past elections, prompted by the [WEC] memos, and thousands of votes have been cast via this unlawful method, thereby directly harming the Wisconsin voters,” wrote Justice Rebecca Bradley, despite no such “record” of actual fraud. “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.”

Republicans who control the Wisconsin Legislature have also tried to enact laws limiting the use of absentee ballots, but Gov. Tony Evers has vetoed them. In the aftermath of the 2020 election, Republicans have made it more difficult to vote in states across the country, using Trump’s defeat as justification  to tighten access to ballots.. Restrictions targeting specific voting methods have proven especially popular among the right, as Republicans have implemented hurdles to mail balloting and early voting that saw explosive growth during the pandemic.

Justice Rebecca Bradley was joined in the majority by fellow conservative Justices Patience Roggensack, Brian Hagedorn and Chief Justice Annette Ziegler. In addition to Ann Walsh Bradley, Justices Rebecca Dallet and Jill Karofsky dissented.