July/August 2022 Issue

Also in this issue: Recent Developments Regarding the First Amendment’s Establishment Clause     |     Wisconsin Court of Appeals Affirms Town Board’s Right to Reconsider Nonconforming Use Recognition and Request Zoning Administrator Decision

Wisconsin High Court Rules Election Drop Boxes Are Illegal; Absentee Ballots May Only Be Mailed or Hand-Delivered by the Voter

07.22.22

In a fractious 141-page ruling, the Wisconsin Supreme Court has found that unstaffed drop boxes may not be used to collect absentee ballots and that such ballots must either be mailed or delivered personally by the voter to municipal clerk. Tiegen v. Wisconsin Elections Commission, 2022 WI 64 (July 8, 2022). Justice Hagedorn was the fourth member of the 4 – 3 ruling, and he only agreed with about 23 pages of the 52-page majority/​lead opinion. This leaves lawyers and clerks to sort out what parts of the ruling are the real majority opinion and which parts are only the opinion of 3 judges. Justice Hagedorn wrote a concurring opinion, and three justices dissented.

The case involved the interpretation of several sections of Wisconsin election law, primarily § 6.87(4)(b)1, Wis. Stats., which reads in part:

The envelope shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.

The Court ruled that delivery of absentee ballots to drop boxes authorized by the municipal clerk did not constitute delivery to the clerk. Such delivery had to be at the clerk’s office. The Court also ruled that the language about delivery of the ballot ​“in person” meant that the elector had to make such delivery to the clerk’s office. The Court explicitly did not reach the question of whether an absentee ballot must be mailed by the elector or whether another person could put the ballot in a mailbox.

In making its ruling, the Court rejected guidance given by the Wisconsin Elections Commission (“WEC”) allowing the use of sealed drop boxes to facilitate voting during the COVID pandemic. The sealed drop boxes had become very popular. WEC and many local clerks had interpreted the phrase ​“in person” to allow any person to bring the voter’s absentee ballot to the Clerk’s office. The Court disagreed.

In his concurring opinion, Justice Hagedorn agreed with the outcome but disagreed with many other parts of the majority/​lead opinion. He also invited the legislature and governor to clarify the law, which he thought reasonable people could read in different ways.

Left open is the question of whether an elector can have an agent drop off the absentee envelope in a mailbox. Certain portions of the law appear to allow an agent to assist the elderly or disabled in completing an absentee ballot, but the Court explicitly refused to answer the mailing question. After the Court decision, WEC’s administrator said that absentee ballots may only be mailed by the elector. Given the Court’s ruling and the language of the statute (“The envelope shall be mailed by the elector…”), this is not a surprising reading.