NO, WISCONSIN WON’T SAVE TRUMP. Drop boxes were a big part of the 2020 election in Wisconsin. The state’s election board installed more than 500 of them across the state in the run-up to the voting. The board acted on its own authority, ignoring Wisconsin law, which requires that absentee ballots be cast either by the U.S. mail or by being personally delivered to an election clerk. The law makes no provision for drop boxes.
In 2021, after Joe Biden narrowly won Wisconsin’s presidential election and former President Donald Trump unsuccessfully challenged the results, a conservative group, the Wisconsin Institute for Law and Liberty, sued the elections board, arguing that it had overstepped its authority in setting up those 500 drop boxes. Last week, the court agreed. “The Wisconsin Election Commission’s staff may have been trying to make voting as easy as possible during the pandemic,” the majority opinion said, “but whatever their motivations, WEC must follow Wisconsin statutes. Good intentions never override the law.”
Democrats had argued that drop boxes were allowed because no law specifically forbade their use. The court disagreed. “No defendant can point to any statute authorizing ballot drop boxes; instead, the defendants argue no statute expressly prohibits them,” the majority opinion said. “The absence of an express prohibition, however, does not mean drop boxes comport with the procedures specified in the election laws.”
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Some Democrats, such as Wisconsin Gov. Tony Evers, protested, but it was a solid decision. The law is clear, and in any event, if Wisconsin wants drop boxes, the legislature can change the law. Now, though, another voice is weighing in: Trump. When the news came out, Trump immediately claimed the decision should be used to overturn the results of the presidential election in Wisconsin.
“The Wisconsin Supreme Court has just declared the ‘Unlock’ Boxes, or Ballot ‘Stuffing’ Boxes, to be ILLEGAL,” Trump posted on his social media network, Truth Social. “Other States are looking at, and studying, the amazing Wisconsin Supreme Court decision declaring Ballot Boxes ILLEGAL, and that decision includes the 2020 Presidential Election. [Republican] Speaker Robin Vos has a decision to make! Does Wisconsin RECLAIM the Electors, turn over the Election to the actual winner (by a lot!), or sit back and do nothing as our Country continues to go to HELL? Brave American Patriots already have a Resolution on the Floor!”
The spoiler alert here is that it is not going to happen. The Wisconsin legislature is not going to go back and retroactively change the results of the state’s election. But Trump’s position raises a question: Does the Wisconsin Supreme Court ruling have any effect on a previous election that relied heavily on drop boxes now declared to be illegal? Such as, say, the 2020 election?
The answer is no. When a lawsuit is filed, the plaintiffs specify some sort of relief they are seeking. Look at the Wisconsin Institute for Law and Liberty lawsuit, and it is evident that the group sought a declaration that ballots can only be cast in compliance with Wisconsin law — that is, either by U.S. mail or in person. Such a declaration would render drop boxes illegal. The institute did not seek any other relief, such as, say, overturning the results of the 2020 election.
Why? I asked institute President Rick Esenberg. “We did not seek retroactive relief, and had we done so, it would not have been successful,” he said in an email exchange. “In Trump v. Biden, the court rejected a series of claims by the Trump campaign on the grounds of laches, i.e., the campaign knew of the irregularities it challenged before the election and did not challenge them. Although the use of drop boxes was not among those challenges, the same rationale would apply. Drop boxes were no secret. No one will be able to challenge the outcome of the 2020 election based on this ruling.”
Esenberg noted an institute study of the 2020 election that found a link between the presence of drop boxes and greater turnout for Biden. The study noted more drop boxes in Democratic areas, but it did not determine why that was. From the report: “It is unclear why there was a partisan skew in the distribution of drop boxes. It may have been a policy choice, with largely Republican areas not wanting to ‘encourage’ absentee voting or having a greater concern with ballot security. Some clerks may have wanted to assiduously follow the law, which … does not provide for drop boxes. It may be that municipal facilities and other potential locations are more prevalent in urban than more rural areas. It could also be that skewed CTCL funding resulted in more money for drop boxes in Democratic areas.”
That last reference to “CTCL” referred to the Center for Tech and Civic Life, a group created by Democratic activists and turbocharged with a $350 million donation from Facebook founder Mark Zuckerberg to play a role in the 2020 election. The so-called Zuckerbucks paid for the group to place staff in the Wisconsin elections board — an extraordinary development for what should be a public, nonpartisan government organization. “It was a genius plan,” wrote Mollie Hemingway in Rigged, her account of 2020 voting practices. “And because no one ever imagined that a coordinated operation could pull off the privatization of the election system, laws were not built to combat it.”
What the Wisconsin Institute for Law and Liberty was saying in its report was that it is not clear whether the drop boxes had a major effect on the vote totals. And even if it did, there might be other reasons, beyond partisan activism, that explained that effect. In any event, it is very clear, as Esenberg said, that there will be no going back. The way to fix the problem was to challenge the drop boxes in court and win. And that is what Esenberg and the institute did.
As for Trump, the Wisconsin Supreme Court decision won’t help his idiosyncratic and backward-looking crusade to overturn results in some of the states he lost in the 2020 election. Nothing will. The point of the Wisconsin drop box case was to look ahead, not back.
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