Elections Commission deadlocks on drop boxes as litigation moves forward

Update: On Friday evening, the Wisconsin Supreme Court ruled that it would consider the drop boxes case, bypassing the Court of Appeals. The Supreme Court, in a 4-3 decision, kept the appeals court’s stay of the Waukesha County Circuit Court’s decision in place, allowing drop boxes to be used in next month’s spring primary election. 

“Vacating the stay would also likely cause substantial harm to the defendants and the public
interest. The February 2022 election process is already underway,” the court’s majority wrote. “Withdrawal of existing guidance while an election is underway is likely to result in voter confusion and uncertainty in the administration
of the election.”

The Wisconsin Elections Commission was unable to reach a consensus on how it should handle absentee ballot drop boxes as the issue moves through the court system, with the Wisconsin Supreme Court considering if it should take a case that would decide the matter. 

The issue of drop boxes has become a political controversy in Wisconsin with Republicans saying the method — which has been used  in Wisconsin for years — is vulnerable to fraud. 

In 2020, the WEC issued guidance for local clerks over how to manage drop boxes when absentee voting became much more popular during the COVID-19 pandemic. 

The right-wing law firm, the Wisconsin Institute for Law & Liberty (WILL), and Republicans in control of the Joint Committee for Review of Administrative Rules have sought to change or rescind that guidance

Earlier this month, in a lawsuit brought by WILL on behalf of two Waukesha County voters, a Waukesha County Circuit Court judge decided that drop boxes aren’t allowed under state law and barred their use. An appeals court granted an emergency stay of that judge’s ruling ahead of the February primary elections. WILL then asked the Supreme Court to take up the case and settle the matter. 

Meanwhile, JCRAR requested that the WEC withdraw its drop box guidance or create a series of emergency rules that would guide how clerks are to use them. The WEC is already in the process of creating permanent rules over the use of guidance after a report from the Legislative Audit Bureau recommended the voting method be codified. 

On Friday, the WEC met to deal with these competing issues, but in a series of 3-3 votes, the commission was unable to come to a solution on how to handle its current drop box guidance.

The three Republican and three Democratic appointees to the commission were unable to agree on whether they should withdraw the guidance and move forward with the emergency rules process or leave the guidance in place. 

The Republican-appointed commissioners wanted to withdraw the guidance so as to comply with the JCRAR order and the court decision that the guidance is against the law. 

“We do not need drop boxes,” Republican-appointed Commissioner Bob Spindell said. “We never had these before, and there was nothing in the statutes that indicated that we could, and I think the position or the thought that anything that’s not in the statutes, then that must be OK to do that, is just not the way that things are set up. And I think the best way to handle this thing until this stuff is resolved, and it should be resolved fairly quickly, is to withdraw our guidance that is requested by the committee because we had no right to put it there in the first place.”

Democratic appointees countered, saying the current guidance is helpful to local clerks administering elections, and if it’s withdrawn they’ll have nowhere to turn as they attempt to hold next month’s election. 

“I think that’s a terrible idea,” Democratic-appointed Commissioner Ann Jacobs said. “I have no interest in withdrawing our guidance on drop boxes. I think drop boxes are safe, effective and an important asset to our election community. I think the idea that the drop boxes that were installed are contrary to law is completely incorrect and I disagree with the very limited analysis of the circuit court. I have no interest in withdrawing our guidance, because I think our guidance is really helpful.” 

Democratic appointees also raised the concern that if the guidance no longer exists, the issue pending in the court system will be moot and the Supreme Court won’t be able to give a definitive answer on the issue, which the commissioners agreed they all want. 

“Currently, the Supreme Court is looking at our guidance in the context of a lawsuit construing the law and whether that guidance is guidance or an administrative rule,” Democratic appointee Mark Thomsen said. “As an agency, I think we would want to know from the Supreme Court, whether our guidance, as [the Wisconsin Department of Justice] says, is consistent with the law, and whether it’s guidance or a rule. We really need a legal decision telling us how we can go forward and what the law is. A risk of withdrawing the guidance is that it moots out the issue currently before the Supreme Court. And because the court could just say the guidance is gone, the issue’s moot and then we’re back at square one.” 

The commission was able to make a decision on another issue that Republicans have highlighted as they’ve made unfounded attacks on the state’s election system — the correction of witness and voter addresses on returned absentee ballot envelopes. 

When an absentee ballot is returned, the voter and a witness must sign the envelope and give their addresses. WEC guidance that’s been in place since 2016 and instituted with Republican support allows municipal clerks to correct those addresses if a municipality name or zip code is left off or even if the address is completely missing and the clerk knows where the person lives. 

JCRAR requested that the commission create an emergency rule or withdraw its guidance over the issue of address collection. In a unanimous vote, the commission agreed to start the emergency rulemaking process. The commission is already in the process of creating a permanent rule over this issue as well. 

The commission is scheduled to meet on Monday to approve a draft of the address correction rule and then send that draft to Gov. Tony Evers and the Department of Administration.