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Liberals on the Wisconsin Supreme Court are questioning previous rulings on drop boxes

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MADISON, Wisc. — The Wisconsin Supreme Court’s new liberal majority on Monday questioned conservative members’ earlier decision to ban secretaries of state from using absentee ballot drop boxes in a case that could affect turnout in a key swing state in November.

Wisconsin’s highest court heard arguments Monday in a Democratic-backed lawsuit that seeks to overturn the court’s decision under the previous conservative majority that state law does not allow mailboxes to be placed outside an elections secretary’s office , and another ruling that banned clerks from filling in missing address information on absentee ballots.

“What if we just got it wrong?” said Justice Jill Karofsky, one of four members of the court’s liberal majority, referring to the court’s earlier decision. “What if we made a mistake? Should we just perpetuate that mistake in the future?”

A Wisconsin court will decide in the coming weeks whether to reinstate the use of absentee drop boxes, just before voters cast their ballots in the next presidential election featuring a rematch between President Joe Biden and former President Donald Trump.

Biden defeated Trump in Wisconsin four years ago by about 21,000 votes. Since then, Trump has tried to convince lawmakers and judges to overturn the battleground state’s election results. In doing so, he argued that ballots returned in mailboxes amounted to voter fraud, despite a lack of evidence to support that claim.

Crucial instrument for the 2020 elections. Why do some states restrict drop boxes?

‘Not something you were clearly worried about in 2020’

Ballot drop boxes had been used in Wisconsin and other states since the 1980s or 1990s, but exploded in popularity during the coronavirus pandemic — especially in liberal-leaning areas — to help voters cast their ballots while limiting interactions with other people.

On Monday, the court’s liberal justices questioned the court’s 2022 decision to ban the boxes, with some arguments focusing on the state Legislature’s previous statements of support for their use.

“This was not at all something that you were clearly concerned about in 2020 when you said these boxes were expressly authorized and lawful,” Judge Rebecca Dallet told an attorney representing Republican legislative leaders in court Monday. 2022 defends which the law prohibits. boxes against the challenge from the liberal group Priorities USA and the Wisconsin Alliance for Retired Voters.

“At that point in 2020, no one had raised legal concerns about mailboxes,” Misha Tseytlin, an attorney representing the Legislature, said in response.

Conservative Justice Brian Hagedorn questioned why past policy positions mattered to the justices’ work interpreting the law.

“There have been parties in this court that have changed positions very recently and other people have not been affected. Why does it matter that the Legislature has a different view of the statute so that we can read the statute faithfully?” said Hagedorn.

Dropboxes and state law

According to the National Conference of State Legislatures, some states have added language about mailboxes to state law. Many include standards for how many drop boxes should be available, based on population, or require one per county.

The plaintiff’s arguments amounted to asking the Wisconsin Supreme Court to become a lawmaker, conservative Justice Rebecca Bradley argued.

“You are asking this court to become a super legislature and give a free hand, despite what the statutes say, and give a free hand to municipal clerks to conduct elections as they see fit,” she said. “That, counsel, seems to me the greatest danger to democracy, because you are asking this court to overrule what the legislature has written.”

Critics say mailboxes are not codified in state law and that lawmakers, not the state elections board, should set rules for them. Advocates say clerks have broad authority and discretion over what tools to use to administer elections in their communities, an argument at least one liberal judge reiterated Monday.

According to the court, there were approximately 570 mailboxes in Wisconsin in the spring of 2021. Of Wisconsin’s 72 counties, at least 66 had mailboxes as of spring 2021, PolitiFact Wisconsin noted.

Although Republicans have heavily scrutinized the use of drop boxes, they have been widely used in Wisconsin, including in conservative areas.

If a Wisconsin court allows the expanded use of drop boxes again, some cities with remaining drop box infrastructure may be able to reopen them quickly. Madison City Attorney Michael Haas said it would be a matter of unlocking the box for Madison and likely double-checking the video security.

Contributing: Hope Karnopp, Milwaukee Journal Sentinel

Contact Molly Beck at [email protected].