Case Summary
Two individuals represented by the Wisconsin Institute for Law and Liberty, a conservative legal group, filed a lawsuit arguing that ballot drop boxes were illegal under Wisconsin law. The plaintiffs argued that under current state law, the only legal ways to return absentee ballots were by mail or for the voter to return them in person to their municipal clerk’s office. LWV Wisconsin intervened to defend voters’ right to use ballot drop boxes. In a 4-3 vote, the Wisconsin supreme court sided with the plaintiffs, ruling ballot drop boxes were illegal under existing Wisconsin law.
Wisconsin allows voters to cast an absentee ballot without an excuse. State law allows election officials to provide alternative locations to return absentee ballots along with the office of the municipal clerk or board of election commissioners. Under Wisconsin statute 6855, these alternative sites are required to be “staffed by the municipal clerk or the executive director of the board of election commissioners, or employees of the clerk or the board of election commissioners.” And Wisconsin statute 6.87(4)(b)(1) requires absentee ballots to be, “mailed by the elector [to the municipal clerk], or delivered in person, to the municipal clerk issuing the ballot or ballots.”
In March and August of 2020, prior to the November election, the Wisconsin Elections Commission (“commission”) sent two memos containing guidance on absentee ballots to local election officials in Wisconsin. The March 2020 memo stated that family members or other persons could return absentee ballots on behalf of voters. The August 2020 memo provided guidance on the types of drop boxes election officials could provide, including unstaffed, 24-hour drop boxes monitored via video surveillance.
On June 28, 2021, two individuals filed a lawsuit in the Waukesha County circuit court, arguing the two memos were illegal and that Wisconsin law forbade persons other than voters from returning absentee ballots and using drop boxes to return absentee ballots. As a remedy, the plaintiffs requested a court order stating (1) absentee ballots could only be returned via mail or personal delivery by the voter to the municipal clerk’s office or approved alternate site and (2) that ‘delivered in person’ means the voter physically handing it to the municipal clerk or an authorized representative as designated under state law.
The League of Women Voters of Wisconsin (LWV of Wisconsin), together with Disability Rights Wisconsin, and Wisconsin Faith Voices for Justice, moved to intervene on August 13, 2021. The League and its partners argued that granting the plaintiffs’ requests would directly impair the ability of Wisconsin voters to vote, particularly those with disabilities and historically low voter turnout. On October 15, 2021, the court granted the League’s motion to intervene.
On January 19, 2022, the court granted the plaintiffs’ motion for summary judgment and issued a permanent injunction including their requested court order. This ruling was stayed by the Wisconsin Court of Appeals. In response, the plaintiffs sought review by the Wisconsin Supreme Court.
In its opening brief, LWV of Wisconsin and partners argued the trial court’s ruling was erroneous in several ways. First, the plaintiffs had failed to exhaust all administrative remedies, meaning they should not have been allowed to file a lawsuit before doing so. Second, the League argued Wisconsin statute 6.874(4)(b) should be read to allow assistance in returning absentee ballots under previous Wisconsin supreme court precedent, the wording of the statute, and the fact that Wisconsin allowed assistance with returning absentee ballots in several other laws. Third, the League argued the circuit court’s ruling could conflict with several federal laws protecting voters with disabilities, including the Americans with Disabilities Act. Fourth, the wording of the statute did not explicitly ban ballot drop boxes and did not explicitly specify that the term ‘municipal clerk’ meant the actual person in that role. Finally, the League’s brief argued that, because the guidance issued by the commission was, under previous precedent, non-binding and not mandatory, it was not required to go through the regular rule making process.
The Wisconsin Supreme Court upheld the trial court’s order on July 8, 2022. The court’s opinion stated that, because ballot boxes were not mentioned or explicitly authorized in the text of the statutes governing absentee ballot return, municipal clerks were not allowed to offer them. The court’s opinion also stated that the term 'in person,' for the purposes of returning absentee ballots, meant voters had to return their own ballots in person. The court concluded by stating only the legislature could authorize the use of ballot drop boxes beyond the provisions of Wisconsin statute 6855.
LWV Wisconsin was represented by Law Forward, Inc., and Stafford Rosenbaum LLP.
LWV Timeline
Plaintiffs file lawsuit
Two Wisconsin voters, represented by the conservative legal group Wisconsin Institute of Law and Liberty, file a lawsuit in the Waukesha county circuit court, alleging guidance issued by the Wisconsin elections commission on ballot drop boxes and returning absentee ballots violates state law. The plaintiffs request a court order banning drop boxes and third-party return of absentee ballots.
LWV of Wisconsin moves to intervene
LWV of Wisconsin, Disability Rights Wisconsin, and Wisconsin Faith Voices for Justice move to intervene in the case, asserting the plaintiffs’ request would impair voting for voters with disabilities and low-turnout populations and force them to incur significant costs to rework their voter education infrastructure.
Trial court grants LWV of Wisconsin’s motion to intervene
Court grants summary judgment to plaintiffs
The court sides with the plaintiffs, declaring that the March and August 2020 memos contradict state law and were illegally issued. The court enters the order requested by plaintiffs restricting absentee ballot return methods.
LWV of Wisconsin moves for stay of the ruling
Wisconsin Court of Appeals stays the trial court’s order
The Wisconsin Court of Appeals stays the trial court's order, ruling that implementing the trial court's order and withdrawing the guidance at issue could confuse voters. In support of its decision, the court noted that, in order to comply with state law and meet the deadline to mail absentee ballots, the guidance at issue would have to be withdrawn, new guidance issued, and absentee ballot return instructions would have to be updated in less than two days.
LWV of Wisconsin files opening brief
LWV of Wisconsin and its partners file their opening brief in the Wisconsin supreme court, calling on the court to overturn the trial court’s ruling for a lack of jurisdiction and incorrectly narrow interpretation of the statutes at issue.
Wisconsin Supreme Court issues opinion
In a 4 – 3 decision, the Wisconsin supreme court affirms the trial court’s decision. The state supreme court’s opinion states that, because ballot boxes were not mentioned or explicitly authorized in the text of the statutes governing absentee ballot returns, municipal clerks were not allowed to offer them. The court concludes by stating only the legislature could authorize the use of ballot drop boxes.