Ballot Boxes 101620 02-10162020152017 (copy)

A Waukesha County judge on Thursday ruled that ballot collection boxes, like this one outside of Madison Fire Department Station #4, on Monroe Street, are not permitted under state law. An appeal of the ruling is likely.

A Waukesha County judge ruled Thursday that Wisconsin law does not permit the use of drop boxes to return absentee ballots — a ruling that could create confusion for voters in the coming months.

Waukesha County Circuit Court Judge Michael Bohren ruled that mailing or returning absentee ballots in person to election clerks’ offices is OK under state law, but that drop boxes are not.

Ballot drop boxes became a popular option for returning ballots for many during the 2020 presidential election, as Wisconsinites sought ways to submit their ballots without having to vote in person amid the COVID-19 pandemic. 

The city of Madison has 14 ballot drop boxes, according to the city clerk’s website. At least 855 clerks statewide used ballot drop boxes for the return of absentee ballots in 2020, according to a report from the state's nonpartisan Legislative Audit Bureau.

Madison Mayor Satya Rhodes-Conway criticized Thursday's ruling. In a statement, she said "ballot drop boxes are used across the nation. They are a safe and effective way to vote, especially during a pandemic."

"It is utterly bizarre that anyone would argue otherwise," Rhodes-Conway added. "This yet another shameful effort to make it harder for people to vote and to undermine our democracy.”

Bohren said he would finalize an order in the coming days that will force the Wisconsin Elections Commission to undo guidance to election clerks permitting the use of ballot drop boxes. The decision came in response to a lawsuit filed on behalf of two residents by the conservative Wisconsin Institute for Law & Liberty.

Riley Vetterkind, a spokesperson for WEC, said in a statement that “staff and WEC commissioners plan to review the court's order and consult with legal counsel in the coming days.”

Bohren said WEC should have gone through the state's administrative rulemaking process to set policy about drop boxes instead of issuing the guidance to election clerks throughout the state.

He said issued guidelines from WEC “have the effect of law.”

The ruling comes about a month out from February’s spring primary. An appeal of Bohren’s decision, which is likely, could contend that he can’t change voting laws in the state so close to Election Day. 

The case could work its way to the Wisconsin Supreme Court, which has so far resisted ruling on the matter. Republican gubernatorial hopeful Rebecca Kleefisch filed a lawsuit about absentee ballot drop boxes before the state’s high court this fall. The former lieutenant governor contends in the lawsuit that the use of the drop boxes runs contrary to state law.  

The state’s high court has not yet decided if it will hear her case.

Jeff Mandell, president and lead counsel at liberal legal group Law Forward, said in a statement that “a trial court in Wisconsin’s most conservative county issued a ruling that absentee ballot drop boxes are illegal in Wisconsin. One judge in one county is radically changing the law for voters in the entire state.” He said that Law Forward, which is representing several groups involved in the lawsuit, will fight the ruling.

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