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Waukesha County judge rules absentee ballot drop boxes not allowed
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Waukesha County judge rules absentee ballot drop boxes not allowed

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Ballot drop box

Election officials Erik Gunneson and Meg Hamel retrieve absentee ballots from one of Madison's 14 fixed ballot drop boxes in October 2020. A Waukesha County judge ruled Thursday that such drop boxes, used in several communities amid the COVID-19 pandemic, are not allowed under state law. 

Absentee ballot drop boxes, which were used in several communities including Madison last year amid the ongoing COVID-19 pandemic, are not allowed under state law, a Waukesha County judge ruled Thursday.

Judge Michael Bohren also granted a request from the conservative Wisconsin Institute for Law and Liberty, which brought the case, to prohibit the Wisconsin Elections Commission from issuing guidance allowing for the use of drop boxes. The ruling means such boxes will not be allowed in the the Feb. 15 spring primary unless the ruling is overturned on appeal.

A small percentage of voters and witnesses made mistakes on their absentee ballot certificates in 2020. Here are some examples of the kinds of errors that were either allowed or corrected by the clerk in order to permit the ballot to be counted.

The lawsuit was filed in Waukesha County on behalf of two residents and challenged the commission’s guidance to clerks in 2020 that drop boxes can be unstaffed, temporary or permanent.

Bohren ruled that the state’s bipartisan Elections Commission should have gone through the formal rulemaking process, rather than issuing guidance to local election officials.

“They have the effect of law,” Bohren said regarding the commission’s guidance. “(Clerks) are going to rely on it as a statement of law.”

Commission spokesperson Riley Vetterkind said agency staff and the commissioners will review Bohren’s ruling in the coming days.

WILL’s lawsuit was filed three days after the state Supreme Court in a 4-3 ruling turned back a separate attempt by a major Republican donor to ban the boxes.

While it’s likely attorneys could appeal Bohren’s ruling, the Wisconsin Supreme Court also could take up the issue in a lawsuit filed last year by Republican gubernatorial candidate and former Lt. Gov. Rebecca Kleefisch challenging the commission’s guidance on drop boxes. The state’s high court has not said if it will take up the case before it goes through lower courts.

Another lawsuit was filed earlier this month by a Waukesha County resident represented by WILL. The voter is suing the Elections Commission for rejecting a complaint he filed last year regarding ballot drop boxes.

Rick Esenberg, WILL’s president and general counsel, said last year his firm does not object to drop boxes, per se, but disagrees that state law is silent on their legality. Because the statutes do not specifically allow them, he asserted, “They are prohibited.”

State statutes do not address the use of ballot drop boxes, though the state elections commission issued guidance in early 2020 to allow election clerks to make use of them. The boxes were widely used in the state that year as an alternative for voters worried that, with the crush of absentee ballots during the COVID-19 pandemic and potential delays in mail delivery, their ballots might not make it back before Election Day.

An attorney for the commission said the guidance was merely a suggestion meant to guide clerks and did not constitute a formal law.

Bohren ruled there is “no statutory authority to have drop boxes used for the collection of absentee ballots” outside of allowed use at an alternate absentee ballot location or at a clerk’s office. He said state law only allows absentee ballots to be mailed in or delivered to the clerk in person.

The commission also approved guidance in 2016 allowing clerks to correct common errors on absentee ballot envelopes, such as missing ZIP codes or address information entered on the wrong line.

Both issues were raised in an October report from the nonpartisan Legislative Audit Bureau, which did not find any evidence of widespread fraud in the state’s 2020 election but did make 48 recommendations to the Legislature and commission for how to improve elections.

The Elections Commission voted last month to begin the administrative rule-making process — which can take as long as 13 months to complete and requires approval from the governor and a Republican-controlled rules committee — for rules pertaining to ballot drop boxes. The commission will vote in a future meeting on specific rule proposals.

Separately, the Legislature’s GOP-led joint rules committee earlier this week voted to require the Elections Commission to quickly create rules for ballot drop boxes and to clarify what missing information clerks can fill in on absentee ballot envelopes.

Republicans have claimed without evidence that both policies can lead to voter fraud. The committee voted 6-4 along party lines to require the commission to publish the guidance as emergency rules by Feb. 9 or withdraw the guidance. Once in rule form, the committee can vote to eliminate the policies.

The commission plans to meet on Jan. 28 to formally discuss the Joint Committee for Review of Administrative Rules’ demand. Democratic commissioner Mark Thomsen asked staff to provide information on whether the committee can force the agency to create the emergency rules.

The Republican-led Legislature passed bills last year that would have enforced rules on ballot drop boxes and what errors local clerks can correct on absentee ballot envelopes, but the proposals were vetoed by Democratic Gov. Tony Evers.

“It seems to me that if you can’t pass it as a law you certainly can’t force a commission to adopt the law,” Thomsen said on Tuesday.

The GOP push to regulate ballot drop boxes is part of several ongoing efforts by Republicans scrutinizing the 2020 election. A recount and court decisions have affirmed that President Joe Biden defeated former President Donald Trump in Wisconsin by almost 21,000 votes.

The 2020 election is over. Here’s what happened (and what didn’t)

The 2020 election was “the most secure in American history,” according to the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, which coordinates the nation’s election infrastructure.

While some voters risked going to prison by attempting to vote twice or in the name of a dead relative, as happens in any election, no evidence of widespread fraud has ever been produced in Wisconsin or elsewhere.

Yet, many continue to question some of the practices clerks relied on to encourage eligible voters to cast ballots and make sure their votes were counted amid the first election in more than 100 years held during a pandemic.

The Wisconsin State Journal has covered every twist and turn of this debate in scores of stories. But here are a few that offered some broader context about what happened, and didn't happen, in the election of 2020.

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The state has multiple, overlapping safeguards aimed at preventing ineligible voters from casting ballots, tampering with the ballots or altering vote totals.

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Nothing in the emails suggests there were problems with the election that contributed in any meaningful way to Trump's 20,682-vote loss to Joe Biden.

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"Despite concerns with statewide elections procedures, this audit showed us that the election was largely safe and secure," Sen. Rob Cowles said Friday.

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The grants were provided to every Wisconsin municipality that asked for them, and in the amounts they asked for. 

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"Application of the U.S. Department of Justice guidance among the clerks in Wisconsin is not uniform," the memo says.

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“To put it simply, we did not break the law,” the chair of the Elections Commission said.

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The memo states that state law gives the Audit Bureau complete access to all records during an audit investigation and federal law and guidance does not prohibit an election official from handing over election records.

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Drop boxes were used throughout Wisconsin, including in areas where Trump won the vast majority of counties.

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Thousands of ballot certifications examined from Madison are a window onto how elections officials handled a pandemic and a divided and unhelpful state government.

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"I don't think that you instill confidence in a process by kind of blindly assuming there's nothing to see here," WILL president and general counsel Rick Esenberg said.

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