Wisconsin Supreme Court Rejects Lawsuit to Ban Absentee Ballot Drop Boxes

Clark County Election Department worker puts mail-in ballots collected from vehicles in a ballot box at the Clark County Election Department in North Las Vegas, Nev., on Oct. 13, 2020. (Ethan Miller/Getty Images)

The Wisconsin Supreme Court recently rejected a lawsuit that sought to ban the state’s usage of absentee ballot drop-boxes, although another legal challenge on their use is still being considered in a lower court.

Conservative businessman and GOP donor Jere Fabick in March petitioned (pdf) the state Supreme Court in March to consider a ban of the drop-boxes, arguing that they violate state election laws. He also sought to ban election officials from filling in missing addresses of witnesses on ballot envelopes, and his suit attempted to limit who can return absentee ballots to election clerks.

In a 4–3 ruling (pdf) on June 25, the court threw out the case but noted that the lawsuit raised important questions. The majority claimed that arguments contained within the lawsuit were not “clearly presented.”

“While this court must not shrink back from deciding challenging or politically fraught questions properly before us, neither should we be eager to insert ourselves at the expense of time-tested judicial norms,” said the majority in an unsigned opinion, adding that Fabick went straight to the state Supreme Court rather than following the usual procedure of filing a suit in a circuit court of with the Wisconsin Elections Commission.

The court’s justices are not “on call to answer questions from citizens, legislators or executive branch officials whenever the answer to a statutory question is unclear,” the majority wrote.

In a dissenting opinion, Justice Pat Roggensack wrote that the court’s majority was avoiding urgent lawsuits.

“They are issues that cry for judicial resolution by the Wisconsin Supreme Court before the 2022 elections begin,” she wrote, adding that questions about ballot drop-boxes and other election rules implemented last year during the COVID-19 pandemic should be answered.

Furthermore, Roggensack suggested that such measures could imperil the public’s trust in the state’s election system.

“We need elections whose results the public will accept because citizens believe that the elections were conducted fairly,” her opinion read, further arguing that Fabick brought the lawsuit in a timely manner. Several other elections lawsuits were dismissed in recent months by the majority who used the rationale that they weren’t filed in a timely manner.

Friday’s ruling isn’t the first time the state Supreme Court avoided hearing an election-related lawsuit. After the Nov. 3 election, the court issued a series of 4–3 rulings that declined to hear suits filed on behalf of former President Donald Trump—with the majority arguing that these legal challenges should have been submitted before the 2020 election.

Earlier this week, a conservative legal defense group filed a similar lawsuit in a county court, arguing that drop-boxes violate state election laws.

According to the latest legal challenge, the Wisconsin Elections Commission 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.