The Wisconsin Supreme Court on Friday ruled 4-3 to reinstate the use of most ballot drop boxes across the crucial battleground state, overturning a decision it made less than two years ago that banned the use of most of those boxes.
“Our decision today does not force or require that any municipal clerks use drop boxes,” the decision Friday read. “It merely acknowledges…that clerks may lawfully utilize secure drop boxes in an exercise of their statutorily-conferred discretion.”
While the ruling had largely been expected after the court’s liberal justices signaled their positioning on the issue during oral arguments in the case in May, it is likely to have large ramifications on the 2024 presidential election in the crucial battleground because it effectively permits the broad use of ballot drop boxes.
In 2020, during the height of the Covid-19 pandemic, Democrats widely encouraged their voters to utilize the drop boxes and are expected to do so again this fall.
On the other side, many Republicans have continued to falsely claim that their use is tied to widespread voter fraud. But, in anticipation of the ruling, some Republicans in the state are now encouraging their voters to use ballot drop boxes this fall.
Friday’s decision marks the latest chapter in a constantly changing saga in a pivotal swing state.
The Wisconsin Elections Commission, which oversees elections in the state, approved funding for the expanded use of drop boxes during the Covid-19 pandemic in 2020.
But in a case brought by conservative groups, the state Supreme Court ruled in July 2022 that Wisconsin voters casting absentee ballots would no longer be able to drop them in boxes located anywhere except the offices of election clerks. It ruled that only the GOP-controlled state Legislature — not the Wisconsin Elections Commission — has the power to enact laws and policy regarding absentee ballot drop boxes
After liberals won back the court majority in 2023, however, the Democratic group Priorities USA filed a suit explicitly seeking to overturn the 2022 ruling curtailing the use of drop boxes, as well other rules and restrictions regarding absentee voting. (After a Wisconsin trial court narrowed the suit, the group appealed directly to the state Supreme Court, skipping over lower appeals courts.)
The group had argued that the 2022 ruling was incorrectly decided due to the fact that Wisconsin law is silent on the issue of drop boxes. While the group has acknowledged that Wisconsin laws do make clear that absentee ballots must be returned by mail or in person, they raised the question in the case that it remained unclear whether voters can return absentee ballots in person to locations other than a clerk’s office.
The Wisconsin Supreme Court’s four liberal justices voted in March to accept the case, agreeing only to resolve whether the 22-month-old ruling was incorrectly decided but not any other issues raised in the suit.
Democrats and progressives in the state filed numerous briefs urging the court to overturn its 2022 decision, while conservative groups and the Wisconsin Republican Party filed several briefs in support of upholding the current rules regarding drop boxes.
Friday’s ruling may, however, accelerate Republican efforts to embrace drop boxes in Wisconsin.
In the years following the 2020 election, the use of drop boxes for absentee ballots was repeatedly criticized by former President Donald Trump and his allies, who falsely claimed that the practice led to widespread voter fraud in 2020.
But in recent months, an ongoing shift in attitudes toward early and alternative voting methods has emerged within the GOP nationally — including by Trump himself, who has begun softening his stance.
NBC News reported in May that the Wisconsin GOP would undertake an effort to encourage their voters to use drop boxes in this year’s presidential election if the state Supreme Court ruled to reinstate them — even though they’ve heavily criticized that method of voting in the past — while also making plans to deploy volunteers to monitor drop boxes in heavily Democratic areas.
The ruling Friday wasn’t entirely unexpected.
The four liberal justices on the Wisconsin Supreme Court repeatedly signaled during oral arguments in May they felt the court ruled incorrectly on the issue 22 months earlier, with many noting that state law is silent when it comes to the specific issue of drop boxes. Liberal justices on the bench used their time to speak to dismiss false claims by conservatives that the use of such boxes were sources of fraud in prior elections. (There is no evidence suggesting that fraud or abuse occurred in the use of drop boxes during the 2020 election in Wisconsin.)
Meanwhile, conservatives in the state had criticized the court for taking up the case anew so soon after it had been decided, claiming that the doctrine of “stare decisis” — the judicial concept that judges should broadly respect legal precedents when formulating and writing opinions — should be relied on.
But liberal justices on the court explicitly rejected those claims during oral arguments, pointing specifically to the U.S. Supreme Court’s landmark decision in 2022 to overturn Roe v. Wade, which had for decades provided a federal right to abortion.
“‘Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences,’” Karofsky said, reading a line from the U.S. Supreme Court opinion.
“What are we to do here, if we believe that Teigen was egregiously wrong from the start, that its reasoning was exceptionally weak and that the decision has had damaging consequences,” she said. The name of the 2022 case decided by the Wisconsin Supreme Court is Teigen v. Wisconsin Elections Commission.
Karofsky was among the three liberal justices on the Wisconsin Supreme Court in 2022 who dissented in the original ruling.
Janet Protasiewicz, whose victory in a Wisconsin Supreme Court race in 2023 gave liberals their first majority in 15 years, joined the three in Friday’s majority decision.
