Wisconsin judge bans ballot drop boxes, ballot harvesting

AP Photo/Marcio Jose Sanchez

An unexpected ruling in a challenge to the use of ballot drop boxes in Wisconsin will likely produce some big changes in how ballots are collected and monitored if last week’s ruling stands. Two voters who were represented by the conservative group Wisconsin Institute for Law and Liberty (WILL) had challenged the use of ballot drop boxes in elections across the state. On Thursday, a Waukesha Country Circuit Court judge ruled in favor of the plaintiffs, banning the use of drop boxes and also banning the practice of having other people return ballots for the voter. This ruling is already being challenged, but if it is upheld, voters will only be able to return their ballots by mail or by dropping them off in person. Supporters of the suit claim that these changes will improve election security and reduce the risk of voter fraud, while opponents claim that the plaintiffs are seeking to discourage voting. (The Federalist)

A judge in the key battleground state of Wisconsin ruled Thursday that ballot drop boxes and ballot harvesting violate state law and cannot be used in the upcoming midterm elections.

Waukesha County Circuit Court Judge Michael Bohren determined “there is no statutory authority” to allow for either practice, which became highly controversial in Wisconsin following the state’s razor-thin outcome in the 2020 presidential election. President Joe Biden defeated former President Donald Trump in the state by approximately 20,000 votes.

The Wisconsin Elections Commission, which is under fire for allegedly bending and even openly violating state law to give Biden an edge, authorized the dramatic increase in the use of ballot drop boxes, but Judge Bohren held that the agency lacked lawful authority to do so.

How well this decision fares under challenge will rely on the court’s interpretation of Wisconsin voting laws. (See here under section 6.88) On a first pass through the applicable codes, I’m really not sure how that appeal should go. There is a lot of legalese dealing with what happens when an elector’s ballot arrives at the office of a municipal clerk and it definitely mentions cases where the ballots are mailed or delivered in person. But I’m not seeing anything saying those are the only ways the ballot can arrive, nor does the law appear to state that the person delivering it has to be the voter. I’m sure the legal eagles in Wisconsin will sort all of that out, though.

They’re tipping over a lot of precedents if the ruling stands, however. (Not that doing so is always a bad thing.) Ballot drop boxes have been used in Wisconsin and many other states for many years. As long as they are being emptied by authorized people in a secure fashion, there hasn’t seemed to be too much controversy over the practice. Of course, that’s a big assumption in the current era. At least for me, the fewer the number of hands that come in contact with a ballot from the time it leaves the hand of the voter until it arrives at the clerk’s office, the better. The use of ballot drop boxes definitely increases that number.

As to who can deliver a ballot, that’s where things get a bit more complicated. Many people are rightly worried about the practice of “ballot harvesting,” largely because it’s so easy for a “harvester” to “accidentally lose” the ballots they suspect were cast for a candidate they don’t support. We’ve also heard horror stories about ballot harvesters making the rounds at nursing homes and other places where potentially confused patients may not even realize that ballots are being cast in their names.

But surely they have to allow for exceptions, right? This judge’s ruling would prohibit spouses and other family members from dropping off a voter’s ballot. For people with mobility issues, that could definitely be a problem.

It sounds like Wisconsin’s voting laws could do with a bit of tightening up in the interest of election security, or at least some rewording for clarification. But depending on which court hears the appeal, I could also see this decision being overturned without much difficulty.