In a suit filed (pdf) Monday in a county circuit court on behalf of two voters in Waukesha County, the Wisconsin Institute for Law & Liberty argued that the court should make a declaratory judgment that the only legitimate means to vote in the state is via the U.S. mail or by handing the ballot in-person to a municipal clerk. The firm further argued that state law says that these are only the two options, not ballot drop boxes, and their usage during elections “raises significant concerns.”
Ballot drop boxes, however, were widely used in Wisconsin—which narrowly certified a victory for President Joe Biden—during the Nov. 3 election, the Wisconsin Institute for Law & Liberty noted.
That’s because, according to the suit, the Wisconsin Elections Commission (WEC) sent memos to elections clerks in March and August of 2020 that encouraged the use of drop boxes. The memos further said that absentee ballots do not need to be mailed by the voter or delivered in-person to the clerk—but they can instead be placed in drop boxes.
But the Wisconsin Institute for Law & Liberty said the WEC memos flout Wisconsin’s election rules, noting that state law says “voting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place,” according to a press release from the firm. The law additionally says, “The envelope [containing the ballot] shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.”
Several days ago, the Wisconsin Supreme Court declined to hear a lawsuit regarding drop boxes, tossing a case by a GOP donor named Jere Fabick who alleged the WEC triggered “election irregularities” by sending out the guidance documents about drop boxes last year. That lawsuit was among many that stemmed from the November 2020 election after a series of challenges from former President Donald Trump’s team and third-party lawyers.
In the latest lawsuit, the Wisconsin Institute for Law & Liberty argues that it is not challenging the results of the November election and wants Wisconsin state law to be enforced during the upcoming 2022 elections.
“A drop-box is not the ‘municipal clerk.’ It is an unsupervised, inanimate object,” the suit reads. “Allowing ballots to be cast by placing them into an unsupervised, inanimate object invites the fraud and abuse that the Legislature was attempting to prevent by requiring strict compliance with the requirement that absentee ballots could only be cast by the two methods allowed,” it said, noting that the law says the absentee ballots can only be sent in via the U.S. mail and by handing it off to a clerk.
The state Supreme Court, when ruling in another lawsuit relating to drop boxes, didn’t examine their legal status because of the timing of the challenge, which came after the November election, according to the news release.
A spokesperson for Law Forward, a left-leaning group focused on voting issues, characterized Wisconsin Institute for Law & Liberty’s suit as baseless. The group noted that several Republican lawmakers in the state publicly endorsed the use of ballot drop boxes last year.
“WILL and their allies have been attacking absentee voting and drop boxes in Wisconsin throughout 2020 and 2021 with no success. Courts have turned away these challenges over and over again,” Law Forward’s counsel, Mel Barnes, told the Journal-Sentinel.
Disability Rights Wisconsin, a group representing voters with disabilities told the paper that ballot drop boxes should remain in the state as they “allow for increased participation of voters with disabilities and other Wisconsin voters.”
The WEC hasn’t yet responded to a request for comment.