A Wisconsin judge rules absentee ballot drop boxes are not allowed under state law

Residents drop mail-in ballots in an official poll field outdoors of a Milwaukee library on Oct. 20, 2020.

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Residents drop mail-in ballots in an official poll field outdoors of a Milwaukee library on Oct. 20, 2020.

Scott Olson/Getty Images

A Waukesha County decide has dominated that absentee poll drop bins usually are not allowed below Wisconsin regulation, a ruling that would doubtlessly take away an possibility for voting forward of the state’s essential midterm elections.

Ruling from the bench Thursday, Circuit Court Judge Michael Bohren ordered the Wisconsin Elections Commission to rescind its steering to clerks on the right way to use the drop bins, saying the WEC had exceeded its authority when it issued the suggestions.

“In looking at the statutes, there is no specific authorization for drop boxes,” Bohren mentioned.

Bohren’s ruling sided with the conservative Wisconsin Institute for Law and Liberty in its lawsuit in opposition to the fee. The ruling is all however sure to be appealed.

The Elections Commission issued the steering in 2020, first in March after which once more in August within the run-up to Wisconsin’s presidential election. The transfer got here as an increasing number of residents turned to absentee voting throughout the COVID-19 pandemic.

The fee’s legal professional, Assistant Attorney General Stephen Kilpatrick, argued in court docket that the paperwork had been meant to be recommendation to native clerks, who run elections.

“These memos are guidance documents because they guide local election officials,” Kilpatrick mentioned. “They do not order them to do anything.”

But WILL legal professional Luke Berg argued that as a result of there isn’t any state regulation particularly permitting for drop bins, there isn’t any authorized customary for what type they need to take.

“A shoebox on a bench in a park would be legal for collecting ballots,” Berg mentioned. “Now, that’s absurd, of course. But that’s the logical consequence of the position that the commission is taking.”

Judge Bohren agreed, noting that whereas the Elections Commission’s steering went into nice element on the development and placement of drop bins, the regulation didn’t permit them.

“All of that is good and nice, but there’s no authority to do it,” Bohren mentioned.

Bohren referred to as the fee’s memo “a major policy decision that alter[s] how our absentee ballot process operates” and mentioned it was broad sufficient that it ought to have been issued as an administrative rule, which might require the Legislature’s approval.

Bohren mentioned he was giving the Elections Commission till Jan. 27 to rescind its drop field steering to clerks. The fee or different events to the case may doubtlessly enchantment the case earlier than that occurs.

“Staff and WEC commissioners plan to review the court’s order and consult with legal counsel in the coming days,” mentioned Wisconsin Elections Commission spokesperson Riley Vetterkind.

The case is one in every of a number of filed by Republicans and their allies in an try to vary the principles for voting headed into the 2022 election. Bohren’s ruling comes simply days after GOP lawmakers on the Legislature’s Joint Committee for the Review of Administrative Rules ordered the Elections Commission to reissue its poll field steering as an emergency rule, which might give GOP lawmakers the facility to dam it.

While drop bins have turn into one in every of many flashpoints following the November 2020 presidential election, there was a time within the not-too-distant previous after they weren’t thought of controversial.

For instance, a Sept. 25, 2020, letter from an attorney for Republican legislative leaders explicitly endorsed using drop bins.

“We wholeheartedly support voters’ use of any of these convenient, secure, and expressly authorized absentee-ballot-return methods,” wrote legal professional Misha Tseytlin representing Assembly Speaker Robin Vos and then-Senate Majority Leader Scott Fitzgerald.

Should this case discover its method to the Wisconsin Supreme Court, all eyes will be on conservative Justice Brian Hagedorn, the court docket’s swing vote. Hagedorn dominated in opposition to former President Donald Trump and his allies in a number of lawsuits searching for to overturn Wisconsin’s 2020 presidential election.

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