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MADISON, Wis. – A divided Wisconsin Supreme Court banned the use of most drop-off ballot boxes Friday and ruled that voters cannot give their completed absentee ballots to others to return on their behalf. a practice that some conservatives scorn as “ballot harvesting.”
It’s a decision feared by voting rights advocates, who have said in the past that such a decision would make it harder for voters — especially those with disabilities — to return their absentee ballots. Many Republicans had hoped for a solution that they said would help prevent someone from voting on behalf of another.
The 4-3 decision came a month before the state’s Aug. 9 primary election, when voters will narrow the fields for governor and U.S. senator. Both races in this battleground state are closely watched nationally.
For years, drop-in ballot boxes were used without controversy in Wisconsin. Election officials greatly expanded their use in 2020 during the coronavirus pandemic as absentee voting reached unprecedented levels.
At the time of the presidential election in Wisconsin, there were more than 500 ballot boxes. Some Republicans opposed their use, citing a state law that says an absentee ballot must “be mailed by the voter or delivered in person to the municipal clerk issuing the ballot or ballots.”
The state Supreme Court on Friday ruled that voters must return absentee ballots themselves and cannot use ballot boxes.
“The key phrase is “personal” and should be given its natural meaning,” Justice Rebecca Bradley wrote for the majority.
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The case began last year when the conservative Wisconsin Institute for Law and Freedom filed a lawsuit over the use of drop boxes on behalf of two suburban Milwaukee men. State law makes no mention of drop-off ballot boxes, and the lawsuit argued against their use “raises doubts about the integrity of the election and undermines voter confidence in the electoral process,” and that the two men “are entitled to have the elections in which they participate properly administered according to law.”
State election officials and disability rights advocates who intervened in the case defended the use of boxes, saying they offer a way for voters to return ballots in person. They also argued that nothing in state law prohibits voters from having their spouse, friend or someone else deliver their completed ballot to a clerk so it can be counted.
In January, Waukesha County Circuit Judge Michael Boren ruled in favor of the plaintiffs. He concluded that state law does not allow for unmanned ballot boxes and requires absentee voters to return their ballots in person or drop them into mailboxes themselves.
The state Supreme Court blocked Boren’s order for judicial and school board primaries in February because they were fast approaching. But judges banned the use of ballot boxes for the general election for those offices in April.
On Friday, the court sided with the lower court and issued a more permanent ruling that will affect future elections, starting with next month’s primaries. Clerks began sending out absentee ballots last month.
Thirty states and the District of Columbia allow drop-in ballot boxes, according to the USA Voting Foundation. Thirty-one states have laws that allow voters to have someone else return their ballot for them, according to the National Conference of State Legislatures. Some of these states allow voters to designate whomever they want for that role, while others limit it to family members or caregivers.
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Wisconsin law states that no person may “receive a ballot from or give a ballot to a person other than the responsible election official.” The plaintiffs say the policy must be strictly followed, meaning it would be illegal for someone to drop off their elderly parents’ ballots for them, or for church members to collect ballots after a service and then take them to the clerk’s office.
The majority agreed with this assessment.
Republicans are most concerned about large-scale ballot collection efforts by partisan actors. While some have engaged in the practice in other states, neither party deployed extensive ballot-gathering operations in Wisconsin in 2020, when Joe Biden narrowly defeated President Donald Trump in the state.
The decision in Wisconsin fell along ideological lines, with the justices chosen with the support of Republicans in the majority and the justices chosen with the support of Democrats in dissent.
Both sides closely watched Judge Brian Hagedorn, who won the 2019 race with Republican help but has sided with the three liberals on the court in a series of high-profile cases.
Hagedorn signed off on much of Bradley’s decision, giving the conservatives the four votes they needed for a majority.
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