Wisconsin Supreme Court's Decision to Make Voting by Absentee Ballot More Difficult and Burdensome

Monday - July 11, 2022

What It Means for Wisconsin Voters in the August Primary and November General Elections 

On Friday morning, the conservative, anti-voter majority on the Wisconsin Supreme Court ruled 4 to 3 that the use of safe and secure drop boxes for the return of absentee ballots in Wisconsin must be severely limited from now on and that the return of absentee ballots to election clerks will also be severely limited to only the person filling out and voting with that absentee ballot. Both of these rulings will impose undue hardships and barriers to voting for thousands of Wisconsinites with disabilities and for elderly voters in particular, and for all voters generally.

The Teigen vs. Wisconsin Elections Commission decision was not entirely unexpected but is still massively disappointing to those of us who believe in fair and free elections in this state and that voting ought to be safe, convenient, simple and straightforward rather than more difficult, uncertain, onerous and burdensome that this decision now makes it and that the majority party in the Wisconsin Legislature has been trying to do for several years now.

In 2020, because of the nationwide COVID 19 epidemic, the Wisconsin Elections Commission (WEC) voted unanimously to allow the placement of safe and secure voting drop boxes as a reasonable and sensible way to return absentee ballots to election clerks, especially close to an election day because of the unreliability of the US Mail as the sole means of returning absentee ballots not cast in-person (as in early voting). By 2021, the number of safe and secure drop boxes had risen to 570 spread across 66 of Wisconsin's 72 counties. But, because Wisconsin statutes do not explicitly authorize the utilization of drop boxes, opponents who want to restrict voting sued to ban them and in Friday's misguided and unreasonably narrow ruling, conservatives on the Wisconsin Supreme Court agreed.

Likewise, WEC unanimously voted in 2020 to allow a neighbor, friend or family member to deliver the absentee ballot of a person with disabilities or an elderly voter to the election clerk but on Friday, conservatives outvoted the moderate justices 4 to 3 and outrageously stipulated that disabled voters or elderly citizens had to deliver their absentee ballots themselves, without regard to their physical ability to be able to do so. Fortunately, according to the Disability Rights Wisconsin, there are federal protections in place that will allow for assistance for voters with disabilities to return absentee ballots.

The Wisconsin Supreme Court was silent on the question of whether or not a family member, neighbor or friend can still simply take the absentee ballot of a disabled person or elderly voter and drop it in a US Mailbox.

As a practical matter, the implications for Wisconsin voters for the upcoming August partisan primary and the November general election seem to be these:

• Safe and secure voter drop boxes that are "unstaffed" are now prohibited throughout Wisconsin. There is considerable doubt and ambiguity at the moment about whether or not a "staffed" drop box that is attached to an election clerk's office will be permitted to return your absentee ballot. For now, we would advise erring on the side of caution and either getting your absentee ballot in the US Mail in plenty of time (two weeks) before Election Day or delivering your own absentee ballot in person to your election clerk's office before Election Day.
• If you are disabled or otherwise unable to deliver your own absentee ballot to your election clerk, call your election clerk's office to arrange for your ballot to be picked up and/or call Disability Rights Wisconsin "voter hotline" at 844-347-8683 for assistance.
• You should place your own absentee ballot in a US Mailbox yourself, if you plan on voting by mail. But if you are disabled or otherwise unable to get to a US Mailbox by yourself, call your local election clerk and/or the DRW "voter hotline" at 844-347-8683.

Our friends and legal experts at the Wisconsin voting rights law firm, Law Forward issued this guidance on Friday morning after the decision was released:

Law Forward’s preliminary analysis of the decision and what it means, for now, for voting in Wisconsin

• Drop Boxes: A majority of the Court determined that, under Wisconsin statutes pertaining to absentee voting, unstaffed absentee ballot drop boxes are not lawful. While there is some confusion, it also appears that a majority of the Court agree that staffed drop boxes are also unlawful.

• In-person Absentee Ballot Return Assistance: The Court determined that, as a matter of Wisconsin law, only the voter may return their own ballot in person to the office of the municipal clerk. Notably, the Court did not resolve the conflict this causes with federal law, which provides that certain voters have the right to assistance of their choice in all aspects of voting. That conflict remains an open question.

• Assistance Mailing Absentee Ballots: The lead opinion, and a majority of the Court, specifically declined to address the question of whether an elector may receive assistance in mailing their completed absentee ballot back to the clerk. Whether an elector may use such assistance remains an open question of Wisconsin law after this ruling (there is no law expressly prohibiting or allowing it), and the status quo on this issue has not changed. Nor does the opinion address federal law, which protects the ability of certain voters to cast their ballots using assistance.

• WEC Guidance Moving Forward: A majority of the Court did not reach the issue of whether the WEC guidance on unstaffed drop boxes and absentee ballot return assistance constituted rules under Wisconsin law, which would require additional time and procedure. While this may be resolved in the future, this decision does not appear to change WEC’s authority to issue such guidance.

CC/WI will update you with any new or different information about the decision, if need be, in the weeks ahead.

The most important action you can take to counter this ill-advised, misguided Wisconsin Supreme Court decision and the continued voter suppression measures and actions being taken by those who seek to make it more difficult to vote in order to gain or maintain partisan political power is to make sure you are fully prepared, credentialed and ready to vote this August and then, again this November and also in the very critical and consequential Wisconsin Supreme Court election in April, 2023!

Here is some information about voting which we encourage you to utilize and share with your family, friends, neighbors, and others who care about democracy and about free and fair elections in Wisconsin and in the nation:

Have a plan to vote. Determine which one of these three methods to cast your ballot works best for you for the August 9th Primary Election and then for the November 8th General Election:

• Vote an absentee ballot that is mailed to you, OR
• Vote during a two week period prior to Election Day (times, locations, and dates vary by municipality so connect your clerk to find out your options), OR
• Vote on Election Day between 7AM and 8PM.

Register to vote and check your voter registration. Registering to vote online is available through July 20th at MyVote.wi.gov. You can also check your voter registration status to make sure everything is correct and up to date. After July 20th, you can register in person with your clerk or on Election Day when you go to vote.

Help others to be registered and be ready to vote. MyVote.wi.gov is the best place to start making your plan to vote, get answers to your questions, find important deadlines, and connect with your clerk. Additional information is at the Common Cause Wisconsin website.

Our determination and resolve to ensure our voices are heard and our votes are counted has never been more important than now.

Forward!

Sincerely,

Jay Heck

State Director of common Cause in Wisconsin

--------------------------

Jay Heck

608/256-2686 (office)
608/512-9363 (cell)

Common Cause in Wisconsin
152 Johnson St, Suite 212
Madison, WI 53703
www.commoncausewisconsin.org