A nonprofit conservative law firm filed a lawsuit challenging Wisconsin’s use of ballot drop boxes days after the state’s Supreme Court declined to hear a similar case questioning the use of absentee ballot boxes.
The Wisconsin Institute for Law and Liberty filed a declaratory judgment case against the Wisconsin Election Commission with Waukesha County Circuit Court on Monday, alleging the commission sent two memos on March 31, 2020, stating a person other than the voter can return their ballot to a drop box. This comes despite the fact returning a ballot through U.S. mail or handing the ballot envelope directly to a municipal clerk are the only available legal options.
The suit further contends a second memo from the WEC dated Aug. 19 stated, “Absentee ballots do not need to be mailed by the voter or delivered by the voter, in person, to the municipal clerk but instead could be dropped into a drop box and that the ballot drop boxes could be unstaffed, temporary, or permanent.”
“A drop box is not the ‘municipal clerk.’ It is an unsupervised, inanimate object,” the lawsuit states. “Allowing ballots to be cast by placing them into an unsupervised, inanimate object invites the fraud and abuse that the Legislature was attempting to prevent by requiring strict compliance with the requirement that absentee ballots could only be cast by the two methods allowed under § 6.87(4)(b)1: (1) the U.S. Mail, and (2) handing the envelope containing the ballot in person to the municipal clerk.”
Richard Teigen and Richard Thom, the individual plaintiffs listed in the suit, said they have standing because they are “registered Wisconsin voter[s] and … taxpayer[s],” and they seek to have “the correct construction of those statutes declared by this Court.”
“By telling municipal clerks that absentee ballots can be cast in this fashion and by allowing votes to be cast in this fashion, WEC put votes cast by voters in jeopardy of not being counted because they are not being cast in strict compliance with the statutes,” the suit contends.
The filing follows a narrow ruling by the Wisconsin Supreme Court on Friday declining to hear a similar lawsuit. In a 4-3 decision, the court tossed the case brought by Jere Fabick, a prominent Republican donor who alleged “election irregularities that arose from following WEC guidance documents,” according to the majority opinion rejecting the case.
“While this court must not shrink back from deciding challenging or politically fraught questions properly before us, neither should we be eager to insert ourselves at the expense of time-tested judicial norms,” conservative Justice Brian Hagedorn, who sided with his liberal colleagues in the case, wrote in the majority opinion.
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Hagedorn argued Fabick’s case was not “cleanly presented with no obstacles to reaching the merits.”
Fabick sought a ruling to stop the use of absentee drop boxes and the filling-in of missing witness address information on absentee ballots.
