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Appeals court reinstates drop boxes for Wisconsin's February primary

Shawn Johnson, WPR | Published on 1/24/2022
Waukesha County Circuit Court Judge Michael Bohren sided with the conservative Wisconsin Institute for Law and Liberty earlier this month, ruling nothing in state law allows for absentee ballot drop boxes.

Bohren initially ordered the Wisconsin Elections Commission to rescind its guidance to clerks on how to use the drop boxes by Thursday, saying WEC had exceeded its authority when it issued the recommendations. At a follow-up hearing last week, Bohren accelerated that deadline, moving it up to Monday.

A coalition of groups including Disability Rights Wisconsin, the League of Women Voters of Wisconsin and Wisconsin Faith Voices for Justice appealed, arguing in part that the ruling had "created a mess" because it was handed down too close to Wisconsin's Feb. 15 spring primary. The U.S. Supreme Court has historically discouraged lower courts from changing the rules for voting too close to an election.

"Huge numbers of Wisconsin voters, and a significant number of Wisconsin election officials, have never participated in a Wisconsin election administered under the rules Respondents convinced the circuit court to impose," read an appeal by the groups. "To implement those rules days before an election is indeed to change how elections function in Wisconsin."

In its Monday ruling, a unanimous District 4 Court of Appeals agreed, writing there may be voters who had already deposited their absentee ballots in drop boxes.

"The potential for voter confusion and uncertainty in administration is apparent in this situation," read the opinion by appeals Judges Brian Blanchard, Rachel Graham and Jennifer Nashold. "If the current guidance is withdrawn at this stage of the election process, there is significant uncertainty as to whether these votes would be counted."

The court issued its order as a temporary stay, meaning it would only overturn the lower court's ruling until Feb. 15. The order could still be permanently overturned in a separate appeal, but the Wisconsin Supreme Court will have the final say in the case.

"We are confident that the circuit court’s ruling will ultimately be upheld and will evaluate our options," said WILL attorney Luke Berg in a written statement.

Shortly after the order was released, the Wisconsin Elections Commission canceled a meeting scheduled for 4 p.m. Monday to discuss drop boxes.