Wisconsin Supreme Court hears case to decide fate of drop boxes

MADISON, Wis. — The state Supreme Court heard oral arguments Wednesday in the case that will likely determine whether drop boxes will be in place for the fall election.

This is the same case that caused confusion among clerks and voters during the February and April elections — a county court threw out the use of drop boxes, but the high court stayed that ruling for February, leaving it in place the no-drop box ruling for April.

At issue is whether the Wisconsin Elections Commission can distribute guidance around policies like drop boxes without going through a more-robust rulemaking process that involves legislative oversight, and whether pandemic-era guidance that the WEC provided is consistent with existing state law.

“I think that [WEC guidances] have the force of law, not by requiring clerks to do this, because WEC didn’t require them to do drop boxes, but WEC authorized them to do drop boxes,” said Rick Esenberg, the lawyer for the plaintiffs challenging the WEC drop box guidance.

Eyes will be on Justice Brian Hagedorn, the conservative swing vote on the 4-3 court. He questioned Esenberg’s point that a guidance carries the same weight as an administrative rule.

“Every part of these memos, you think they all have the force of law that all local officials need to follow every word of them?” Hagedorn posed.

Also before the court was the question of who can return an absentee ballot. During the pandemic, the WEC rejected a proposal by Esenberg’s Wisconsin Institute for Law and Liberty that would have limited who can return an absentee ballot to only the voter that cast that ballot.

Esenberg argued in court Wednesday that state law requires voters to cast the ballot themselves — whether by feeding the voting machine with their ballot on election day or returning an absentee ballot in the mail.

Disability advocates say however, this will overtly disenfranchise a group of voters.

“They suggest that every voter is able to mail their own ballot, place it in the mailbox or return it to their clerk if they try hard enough — that is offensive and it is false,” said Barbara Beckert of Disability Rights Wisconsin in a news conference after the oral arguments. “[Some voters] may not have arms, but they do have the constitutional right to vote, and it is protected.”

The state Supreme Court has a full elections docket ahead of the August and November elections — the court must also weigh a challenge to the state’s newly-drawn legislative boundaries. The U.S. Supreme Court asked the state court to reconsider one question it felt was unresolved. Candidates were initially scheduled to start circulating nomination papers Friday, but the boundary lines for state Senate and Assembly must be in place first.