Wisconsin's Supreme Court was scheduled to hear arguments Wednesday in a case that will likely determine how extensively absentee ballot drop boxes can be used in the upcoming midterm election where the battleground state's Democratic governor and Republican U.S. senator are on the ballot.
The court in February barred the use of drop boxes outside of 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, grocery stores and other locations.
The fight is being closely watched as Republicans push to limit access to absentee ballots following President Joe Biden’s narrow win in Wisconsin over Donald Trump in 2020 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.
A Waukesha County judge ruled in January that the election commission's guidance was contrary to the law and that the guidance was actually an administrative rule that was invalid because it was not put in place properly. The state Supreme Court will also be deciding whether to let stand the judge’s ruling that prohibited anyone other than the voter from returning an absentee ballot.
The elections commission rescinded its guidance pending the outcome of the court's ruling.
Advocates for people with disabilities and others argue that restriction makes it more difficult for some voters who have limited mobility, or other physical impairments, from returning their ballots.
Wisconsin’s top elections official testified last year that at least 528 drop boxes were used by more than 430 communities in the presidential election. The popularity of absentee voting exploded during the pandemic in 2020, with more than 40% of all voters casting mail ballots, a record high.
All eyes in Wednesday's arguments will be on swing Justice Brian Hagedorn, a conservative who sometimes sides with the court's liberal minority.
In January, Hagedorn sided with liberals and put on hold a lower court's ruling barring drop boxes outside of clerks' 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 lawsuit was brought on behalf of two Milwaukee voters by the conservative law firm Wisconsin Institute for Law & Liberty. It is opposed by the Democratic Senate Campaign Committee, the Wisconsin Elections Commission, Disability Rights Wisconsin, Wisconsin Faith Voice For Justice and the League of Women Voters of Wisconsin.
Republicans who control the Wisconsin Legislature have also tried to enact laws limiting the use of absentee ballots, but Evers has vetoed them.
Republicans have made similar moves since Trump’s defeat to tighten access to ballots in other battleground states. The restrictions especially target voting methods that have been rising in popularity and erecting hurdles to mail balloting and early voting that saw explosive growth earlier in the pandemic.
