Wisconsin Supreme Court Reconsiders Legality of Absentee Mailboxes • Wisconsin Examiner

The Wisconsin Supreme Court heard oral arguments Monday in a case that could once again allow the use of drop boxes for absentee ballot returns.

Mailboxes were banned by the Court in 2022 when the body’s then-conservative majority on the Board of Elections Teigen v. Wisconsin decided that state law only allowed absentee ballots to be delivered directly to county clerks, and not to unattended drop boxes.

Ballot drop boxes had been used in Wisconsin for decades, largely with slots or ballot drop boxes at municipal buildings, but they became increasingly popular in 2020 as voters looked for ways to vote safely during the COVID-19 pandemic. A Waukesha County voter sued the Board of Elections, arguing it had issued unlawful guidance to clerks on the admissibility of the boxes.

After the 2020 election, conservatives turned against the use of the boxes, arguing they were vulnerable to fraud and abuse. The boxes had been used across the state, both rural and urban, but conservatives argued they were opening state elections to the possibility of “ballot harvesting.”

In the Teigen case, the Court ruled that because state law did not explicitly allow mailboxes, they are not permitted. The decision prompted former President Donald Trump to again claim he won Wisconsin in 2020, declaring that any ballots dropped into the boxes were illegal and should not have been counted.

Earlier this year, the national Democratic group Priorities USA filed a lawsuit challenging the Teigen decision, asking the now liberal-controlled Court to reverse its earlier decision. Gov. Tony Evers and Attorney General Josh Kaul joined the cause, advocating for the use of mailboxes, while the Republican-controlled Legislature joined the cause and argued that mailboxes should remain banned.

On Monday, arguments focused on the confusion the Teigen decision has caused state election administrations, what limits there are on the authority of county clerks to conduct elections and whether the Court should move to overturn an earlier decision to undo.

David Fox, the attorney for Priorities USA, argued that the Teigen decision points a “loaded gun” at the state’s election administration, giving any voter the green light to challenge any practice by city clerks that is not explicitly stated in the law is permitted.

“People won’t see a problem, clerks won’t see a problem, voters won’t see a problem,” Fox said. “Everyone will take action that seems like a completely legitimate action to everyone at the time. And then, after an election, someone will come to this clerk and say, “Wait, where’s the express consent? All those ballots should be thrown away. ”

“It’s a huge problem as a result of this Court’s ruling in the Teigen case, because if everything has to be expressly approved, under penalty of throwing out ballots, that’s a loaded weapon,” he continued.

Many of the liberal justices on the Court seemed to side with Fox, questioning how the Teigen decision is the only place in the law where something must be explicitly allowed to be legal. The attorneys who advocated for the use of mailboxes said state law gives municipal clerks the authority to hold elections for their communities, giving them broad authority to make hundreds of decisions on their own, so why can’t they decide to put a mailbox on to put? .

“We operate in law with a general concept: When the legislature writes a statute, things are permitted unless they are prohibited,” said Judge Rebecca Dallet. “There is no way that even though our statute books are quite long, and there are quite a few of them, you could ever get every little thing that has ever existed in any area, especially in the area of ​​suffrage. If we have a decentralized system of clerks – as has already been said – making hundreds of decisions every day regarding elections, and if something is not explicitly stated in the statutes, can it not be done? That is the principle that turns everything else upside down.”

But the Court’s conservative justices responded to that argument by asking about the restrictive principle. Wisconsin statutes say absentee voting is subject to more rules and requirements than in-person voting because it is a “privilege,” but if state law gives clerks the authority to decide whether or not to use a drop box, where Does that authority then end? the judges asked.

“You have argued that county clerks are free to decide where and how to accept returned absentee ballots,” said Judge Rebecca Bradley, who wrote the Teigen ruling. “It appears, then, that the seizure you seek from this court is not limited to the use of mailboxes. So what limiting principle are you offering or suggesting to the court… you are asking this court to give municipal clerks a complete free hand to ignore the carefully regulated regime that has been put in place by the people’s representatives in the legislature, and that they can do what they want? ”

Fox said clerks are elected officials accountable to their constituents, so the limiting principle is that they lose their position.

The justices also considered whether or not to take the step of overturning a previous precedent. The liberal justices, who argued that Teigen’s structure makes no sense, pointed to the many times Misha Tseytlin, the legislature’s lawyer, argued before the Court to overturn precedent.

“You’re talking to us about the importance of precedent, and I think it’s very important,” Judge Jill Karofsky said. “I think stability in the law is very important. What if we’re just wrong about Teigen? What if we made a mistake? Should we just perpetuate that mistake in the future?

Tseytlin said that if the Court overturns Teigen now, it is likely he will appear before the Court again the next time the composition changes, calling for the decision to be reversed.

“I can guarantee you that if the dissent in Teigen becomes the majority in this case, that when the composition of the Court changes in a year, the new dissenters will think that the majority’s decision was flawed in principle under this new” we just disagree by default,” Tseytlin said, assuming the results of next year’s Supreme Court elections will restore a conservative majority. “And we come here again to determine whether, legally speaking, mailboxes are allowed and maybe next year the composition of the Court will change and we will be back here for the fourth time.”