Wisconsin judge rules absentee ballot drop boxes are illegal in state elections

A judge in Waukesha County, Wisconsin, has ruled that absentee ballot drop boxes are impermissible under state law and cannot be used in elections.

Circuit Court Judge Michael Bohren ruled Thursday that absentee ballots can be returned by mail or in-person but cannot be dropped off at a drop box. He said the Wisconsin Elections Commission had exceeded its authority by issuing guidance to election clerks on how to use drop boxes, according to NPR.

"In looking at the statutes, there is no specific authorization for drop boxes," Bohren said.

The ruling is a victory for the Wisconsin Institute for Law and Liberty, a conservative group that challenged the legal status of guidance the WEC issued in 2020 instructing election clerks to encourage the use of absentee ballot drop boxes for the presidential election.

“The guidance from the Wisconsin Elections Commission on absentee ballot drop boxes was unlawful. There are just two legal methods to cast an absentee ballot in Wisconsin: through the mail or in-person at a clerk’s office. And voters must return their own ballots. We are pleased the court made this clear, providing Wisconsin voters with certainty for forthcoming elections," WILL deputy counsel Luke Berg said.

Bohren's ruling is widely expected to be appealed. If it stands, it could impact the upcoming judicial primary elections in Wisconsin on Feb. 15.

"I'm sure the court is aware we are about 30 days from the upcoming spring election, and the purpose of this is to avoiding confusion among the electorate as they go to cast ballots," Scott Thompson, an attorney representing Disability Rights Wisconsin and the League of Women Voters, two groups that support the WEC guidance, said.

Absentee ballot drop boxes were widely used during Wisconsin elections in 2020. The WEC issued memos to Wisconsin clerks in March and August, instructing clerks that absentee ballots did not need to be mailed or delivered in-person by a voter to the municipal clerk but could instead be placed in a drop box. According to WEC, those ballot drop boxes can be unstaffed, temporary, or permanent.

WILL argued that the use of ballot drop boxes was illegal because state law requires that the envelope containing a ballot "be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots."

Bohren agreed with that interpretation of state law, calling WEC's guidance "a major policy decision that alter[s] how our absentee ballot process operates." He said such a broad change in how absentee ballots were delivered should have been issued as an administrative rule, which would require consent of the state legislature.

The WEC has until Jan. 27 to rescind its drop box guidance, provided the judge's ruling is not overturned on appeal.