Elections Commission discusses clerk guidance on drop boxes

A ballot drop box in Madison, Wisconsin, that has been put out of commission. The city posted a sign explaining why it can no longer be used after a Wisconsin Supreme Court decision banned most absentee ballot drop boxes. (Wisconsin Examiner photo)

The Wisconsin Elections Commission (WEC) on Thursday approved a memo that will be sent to municipal clerks around the state providing advice for the use of absentee ballot drop boxes now that they’re once again allowed.

Last week, the state Supreme Court, now under a liberal majority, ruled in a 4-3 decision that a 2022 decision by the Court declaring drop boxes illegal was “unsound in principle.”

Drop boxes had been used by local election clerks in communities across the state for years, but the voting method surged in popularity in 2020 when voter behavior changed because of the COVID-19 pandemic. Following the 2020 presidential election and unfounded allegations by former President Donald Trump and Wisconsin Republicans that the election was fraudulent, many conservative figures in the state turned against drop boxes.

The Wisconsin Institute for Law & Liberty filed a lawsuit on behalf of a Waukesha County voter seeking to have the boxes outlawed. The then-conservative held Court ruled in Teigen v. Wisconsin Elections Commission that state law only allows absentee ballots to be returned to a mailbox or directly to the municipal clerk.

The Court’s decision last week found that Wisconsin’s election statutes give municipal clerks discretion to determine how they want to receive completed absentee ballots. The majority opinion, written by Justice Ann Walsh Bradley, states that clerks are not forced to use drop boxes, only that they can if they choose to do so.

On Thursday, the WEC weighed how to assist clerks who choose to use the boxes and how to keep them secure.

Much of the six-member body’s discussion focused on how clerks should secure the boxes and how to tailor the memo in a way that provides meaningful logistical advice to both the City of Milwaukee, which will operate 15 drop boxes across the city and a tiny rural community with one drop box outside of the town hall.

Additionally, the commission has previously been criticized by Republicans and pushed back on by the court system for providing guidance to clerks that in essence served as “unpromulgated rules” — meaning the guidance should have been formalized through the official administrative rulemaking process.

Earlier this week at an election security panel in Milwaukee, former Republican Sen. Kathy Bernier called for the commission to pass an emergency rule to officially guide how clerks should use drop boxes.

In a discussion about how drop boxes should be secured, the commission debated if it should recommend that boxes be secured to the ground or “affixed” to a building. Commissioner Don Millis said that even with the threat posed by previous lawsuits against guidance issued by the commission, the recommendations should be strong enough to provide real security to the boxes.

“If someone’s going to sue us because we said it should be a sturdy drop box, go ahead, you know,” he said. “We have to say something about it. I understand the concern that it’s an unpromulgated rule. But, you know, we just have to do something. We’d be open to ridicule, and I think appropriately, if we say you should think about it, you should consider whether it should be locked.”

The commission also considered how clerks should communicate with voters about the use of drop boxes on Election Day. By law, absentee ballots are allowed to be returned until polls close at 8 p.m. on Election Day.

However, because of the realities of a busy Election Day, it’s unlikely that the clerk or election workers will be available to empty a box one last time at 8:01. Practically, an election worker would probably empty a box some time before then, so the clerks need to tell voters that if they’re returning a ballot after the box will no longer be checked, that ballot should go to their polling site or to the municipal clerk’s office directly.

“On the night of the election, I don’t think clerks are going to be running to those drop boxes at eight o’clock to make sure that there’s ballots, to see if there’s a ballot there,” Commissioner Marge Bostleman said. “And I think there should be some type of wording that says on the day of the election, this box will be collected at a certain time so that people know that they need to get it there by a certain time. I’m not sure how to do this, but I don’t want people’s vote not to be counted because the ballot is found the next morning.”

The commission decided on instructing clerks to lock their drop boxes after they’re no longer available for use; as well as providing signs near the drop boxes and including inserts with the absentee ballot materials when they’re mailed explaining when ballots will last be picked up from the boxes. After recommending changes the commissioners approved the guidance unanimously.

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