Wausau’s conservative mayor relocates a ballot drop box on his own, a potential ethics and criminal violation

The city attorney advised Doug Diny not to tamper with the drop box outside of City Hall. The local district attorney and state Elections Commission have been asked to investigate.

Wausau Mayor Doug Diny stands to be accused of ethics and legal violations after he removed an absentee ballot drop box outside of City Hall on Sunday evening on his own—despite being told by the city attorney that he did not have authority to do so.

City Clerk Kaitlyn Bernarde released a statement Wednesday confirming she had reported the drop box removal to Marathon County District Attorney Theresa Wetzsteon and the Wisconsin Elections Commission as an election irregularity. 

Diny provided photographic proof, showing himself dressed in a shirt and tie, a Department of Public works jacket, and a hardhat as he used a dolly to take the drop box back inside the building.

Wisconsin Statute 12.60(1)(a) makes it a felony to “by abduction, duress, or any fraudulent device or contrivance, impede or prevent the free exercise of the franchise at an election.” 

In her statement, Bernarde said the drop box will not be put into use “since the matter has been referred for investigation” but that eligible voters can return their own absentee ballot using the City Hall payment box. 

Diny told the Wausau Daily Herald he just happened to notice the drop box while working in his office on Sunday. But City Council President Lisa Rasmussen told the Wausau Pilot and Review that City Attorney Anne Jacobson advised Diny earlier not to tamper with the drop box.

Diny, a conservative, unseated progressive incumbent Katie Rosenberg in April.

Drop boxes had been a staple of local governments for many years until former President Donald Trump falsely blamed his 2020 election loss on a host of factors including voter fraud and  misuse of drop boxes. No evidence of widespread fraud has ever been presented. 

A conservative-controlled Wisconsin Supreme Court ruled in 2022 that drop boxes were not specifically mentioned in state statute and banned further use. The current progressive-controlled court ruled earlier this year that statutes give local elections clerks wide latitude in administering elections, including the use of drop boxes. The Wisconsin Elections Commission later issued guidance on the use of drop boxes, though conservatives have claimed the guidelines are vague enough to justify not allowing their use. 

Since the Court’s decision, city councils in the Waukesha County communities of Brookfield and New Berlin voted not to provide drop boxes to their residents, as have six Milwaukee County suburbs: Bayside, Fox Point, Hales Corners, Glendale, River Hills, and St. Francis. And there will be no drop boxes in many if not all Dodge County communities after local clerks buckled to pressure by Sheriff Dale Schmidt, whose personal interpretation of the court order and guidelines led him to email the clerks, “I strongly encourage you to avoid using a drop box.”

In Wausau, the mayor is being criticized for possibly violating the city’s ethics code for “knowingly engaging in conduct that is illegal or beyond the scope of one’s authority,” Rasmusssen told the Pilot and Review. 

But Diny was unrepentant, equating public opinion with legal advice. 

“This action is consistent with my overall position and what I heard from residents when I was knocking on doors,” Diny told the Pilot and Review.

Beyond his already-stated opposition to drop boxes, Diny claimed the box needed to be brought inside because it was not bolted into place.

“Anybody could have driven by, thrown it on a truck, and thrown it in the river, for all anyone knows,” Diny told conservative radio station WSAU-AM.

But Bernarde noted in her statement, “The box was not yet functional; it was locked and clearly labeled, ‘Kiosk Closed.’ Since the drop box was closed and locked, no ballots would be accepted.” Once the box had been relabeled, it was going to be secured to the ground and opened to accept ballots, she said.