MADISON – Conservatives sought Wednesday to elevate Wisconsin's legal fight over absentee ballot drop boxes to the state Supreme Court, asking the justices to swiftly take up a case and bar the use of drop boxes in next month's spring primary.
The filing came two days after an appeals court unanimously ruled drop boxes could be used in the Feb. 15 primary for Milwaukee mayor and other races around Wisconsin.
The case is expected to eventually be decided by the high court, but it’s unclear if the justices will take it at this stage. The justices can accept the case and act swiftly or leave it for now with the Madison-based District 4 Court of Appeals.
Last year the justices declined to take a similar case in a 4-3 ruling. The majority determined that lawsuit raised important questions but was not "cleanly presented" to them because it had been filed directly with the state Supreme Court.
The majority in that case consisted of the court’s liberals and Justice Brian Hagedorn, who was elected in 2019 with the backing of Republicans.
The case the justices are now being asked to take is more fully developed than the one they rejected in June, but still is being considered by the appeals court. The justices must consider whether to take over the case or let it stay with the appeals court, at least for now.
Election clerks and voters embraced ballot drop boxes in 2020 as coronavirus cases took off and Wisconsinites turned to absentee voting in unprecedented numbers. More than 500 drop boxes were available in Wisconsin in the presidential election.
The case now at issue was filed last summer, three days after the state Supreme Court declined to take the earlier case. It was brought by two suburban Milwaukee men represented by the conservative Wisconsin Institute for Law & Liberty.
They argue drop boxes are not allowed in Wisconsin because state law says ballots can be returned only in person or by mail. Waukesha County Circuit Court Judge Michael Bohren this month agreed and barred their use.
On Monday, the appeals court suspended Bohren's order for the Feb. 15 primary in part to avoid voter confusion. The appeals judges will decide later whether to permanently block Bohren's decision or let it stand and end the use of drop boxes for other elections.
The case is being closely watched because it will set the rules for the 2022 midterm elections and 2024 presidential contest.
Supporters of drop boxes note they are not explicitly mentioned in state law and say drop boxes offer a form of returning ballots in person. They say they provide a secure way to vote, noting many of them are under 24-hour video surveillance and in locations where they can be closely monitored, such as government offices, libraries and fire stations.
Also at issue in the case is whether voters can have someone else deliver their absentee ballots for them. Bohren ruled they cannot, but the appeals court determined they can for the Feb. 15 primary.
Strict limits on returning absentee ballots for others would mean that political groups could not collect ballots from voters and take them to clerks. Such limits would also prevent people from dropping off ballots at clerks' offices for their family members or neighbors.
Republicans in Wisconsin have expressed changing views on ballot drop boxes over the last year and a half.
Assembly Speaker Robin Vos of Rochester through his attorney in 2020 argued ballot drop boxes were authorized by state law. On Monday, he issued a statement saying he does not support the "expansion" of the use of drop boxes. On Tuesday, he refused to say whether he supports their use in some instances.
Last year Republicans in the state Senate voted for legislation that would allow drop boxes in limited circumstances. The Assembly has not taken up that bill.
Former Lt. Gov. Rebecca Kleefisch, a Republican running for governor, in November brought her own lawsuit asking the state Supreme Court to block the use of drop boxes. The justices have not said whether they will take up that case.
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Contact Patrick Marley at firstname.lastname@example.org. Follow him on Twitter at @patrickdmarley.
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This article originally appeared on Milwaukee Journal Sentinel: Wisconsin Supreme Court asked to block drop boxes in Feb. 15 primary