July 18, 2024 – In a 4-3 decision, the Wisconsin Supreme Court has overruled a 2022 decision that held ballot drop boxes were illegal.

In Priorities USA v. Wisconsin Elections Commission, 2024 WI 32 (July 5, 2024), the Supreme Court held that the 2022 decision was unsound and state law allows local election clerks to use drop boxes to collect absentee ballots.

Justice Ann Walsh Bradley wrote the majority opinion, joined by Justice Rebecca Dallet, Justice Jill Karofsky, and Justice Janet Protasiewicz. Justice Rebecca Grassl Bradley dissented, joined by Chief Justice Annette Ziegler and Justice Brian Hagedorn.

Dropbox Challenge

In July 2023, Priorities USA sued the Wisconsin Elections Commission (WEC) in Dane County Circuit Court. Priorities USA claimed that various state voting requirements violated state statutes and the Wisconsin Constitution.

Among the requirements challenged by Priorities USA was the requirement that absentee ballots be returned by mail or in person to a clerk’s office, and not to a secure drop box.

The WEC moved to dismiss the claim regarding drop boxes.

The circuit court concluded that it was bound by Teigen v. Wisconsin Elections Commission, 2022 WI 64, and granted the motion. In Teigen, the Supreme Court held that state law did not authorize the return of absentee ballots to secure drop boxes.

Priorities USA petitioned to bypass the Wisconsin Court of Appeals. The Supreme Court granted the petition.

‘Clerk’ Versus ‘Office of Clerk’

Justice A.W. Bradley began her opinion for the majority by pointing out that Wis. Stat. section 6.87 requires that absentee ballots must either be mailed by the voter or “delivered in person, to the municipal clerk issuing the ballot or ballots.”

In Teigen, the Supreme Court held that delivering a ballot to a secure drop box did not count as delivery to a municipal clerk because a drop box is an inanimate object and a municipal clerk is a person.

A.W. Bradley noted that the state’s election statutes contain terms like “office of the municipal clerk,” “office of the clerk,” and a “clerk’s office” and the term “municipal clerk,” with the latter being defined as “the city clerk, town clerk, village clerk and the executive director of the city election commission and their authorized representatives.”

“Synthesizing the … information regarding the ‘office’ of the clerk with the statutory definition of ‘municipal clerk’ leads to the conclusion that the two terms are distinct,” Justice A.W. Bradley wrote.

“Put simply, the ‘municipal clerk’ is a person, while the ‘office of the municipal clerk’ is a location.”

That reasoning, A.W. Bradley concluded, also applied to section 6.87.

“Had the legislature wanted to require delivery of an absentee ballot to a specific location, i.e., the clerk’s office, it could have done so, and the wide usage of the term ‘clerk’s office’ throughout the election statutes certainly indicates that the legislature knew how to do so,” Justice A.W. Bradley wrote.

Justice A.W. Bradley then concluded that delivering a ballot to a secure drop box counted as delivery to a municipal clerk for purposes of section 6.87.

“A drop box is set up, maintained, secured, and emptied by the municipal clerk,” A.W. Bradley wrote. “This is the case even if the drop box is in a location other than the municipal clerk’s office.”

“As analyzed, the statute does not specify a location to which a ballot must be returned and requires only that the ballot be delivered to a location the municipal clerk, within his or her discretion, designates,” Justice A.W. Bradley wrote.

That conclusion, A.W. Bradley reasoned, was supported by the fact that state law grants the state’s 1,850 municipal clerks discretion to run elections.

“Reading ‘to the municipal clerk’ to reference a person rather than a location entrusts some discretion to municipal clerks in how best to conduct elections in their respective jurisdictions,” Justice A.W. Bradley wrote.

Unsound Decision

Regarding whether Teigen should be overruled, Justice A.W. Bradley pointed out that, under Supreme Court case law, the principle of stare decisis – that courts should “stand by things decided” – does not operate like a straitjacket or an immutable rule.

Justice A.W. Bradley explained that, under Supreme Court case law, the court will overturn a decision if it’s “unsound in principle.”

Teigen was such a case, A.W. Bradley concluded, because the majority had wrongly relied on section 6.84 to interpret section 6.87.

In section 6.84(1), the legislature stated its policy that “the privilege of voting by absentee ballot must be carefully regulated to prevent the potential for fraud and abuse.”

Section 6.84(2) specifies that section 6.87(3) to (7) (and other sections) must be construed as mandatory and absentee ballots cast in violation of those sections may not be counted.

“[Section] 6.84 gives us no principles of interpretation that give any insight into the actual meaning of the absentee balloting statutes that follow it,” Justice A.W. Bradley wrote.

“Observing that a statute must be ‘strictly adhered to,’ as the Teigen majority portrays, does not inform the meaning of the statue.”

The reliance on section 6.84 “permeated” the Teigen majority’s analysis, A.W. Bradley concluded, to the point that the analysis was not simply mistaken, it was unsound.

Justice R. Bradley Dissent

Justice R. Bradley wrote in her dissent that the majority “forsakes the rule of law in an attempt to advance its political agenda.”

The majority, Justice R. Bradley argued, misapplied the standard for overruling a case because it was unsound in principle.

“Discarding a decision requires something more than saying the court was merely ‘mistaken’ or the current majority sees the statute differently,” Justice R. Bradley wrote.

Justice R. Bradley also argued the majority erred in interpreting section 6.87.

Specifically, she argued that the majority mischaracterized the majority decision in Teigen as having conflated the phrases “to the municipal clerk” and “to the municipal clerk’s office.”

“The majority would have us believe that buried within four innocuous words, ‘to the municipal clerk,’ is a delegation of vast power to municipal clerks to create an absentee voting regime unlike anything resembling the law,” Justice R. Bradley wrote.

“This not how any reasonable reader – much less a judge – reads statutes.”