(This story was updated to accurately reflect the most current information.)
WAUSAU – Wausau residents and voters are still wondering what will happen after Mayor Doug Diny moved the clerk’s office drop box Sunday afternoon.
Diny defended his actions to a Wausau Daily Herald reporter Tuesday, saying the box was unsecured Sunday and he was just moving it to safety, but on Friday released a contradictory statement to media saying he wants the issue brought before the Wausau City Council.
City Clerk Kaitlyn Bernarde on Wednesday reported an election irregularity to the Marathon County district attorney and the Wisconsin Elections Commission per the requirements set by Wisconsin Statute 7.15(1)(g) , which require municipal clerks to make such reports. It is still unknown if any actions will be taken against the mayor for his actions.
Due to the ongoing investigation, the drop box will not be available for dropping off any documents, including absentee ballots. On Sept. 19, the city clerk mailed out over 4,000 absentee ballots to voters. Eligible voters may return their ballots via the mail or directly to the city clerk using the silver Payment Box outside of City Hall. Ballots must be received by the city clerk by 8 p.m. on Nov. 5 to be counted.
Here’s what we know and don’t know so far about Diny’s removal of the drop box, the mayor’s past statements on ballot drop boxes, Wisconsin laws on ballot drop boxes, if any action will be taken against Diny for the drop box removal and what other state and local leaders have to say about the situation.
Why did Mayor Doug Diny remove the drop box?
The reason is unclear. On Tuesday, Diny told a Wausau Daily Herald reporter he was working on Sunday when he realized the drop box in front of City Hall was not bolted down, which is when he made the decision to move it to safety.
“It was never installed. … Anybody could have driven by, thrown it on a truck and thrown it in the river for all anyone knows,” Diny said. “It was sitting unsecured on the sidewalk so as a city employee and as the senior elected official here I wheeled it inside.”
However, on Friday, Diny released a statement to the media stating, “The city clerk is out of her lane, I don't work for her.”
He then referenced decisions to bring the question of ballot drop box use in Brookfield and New Berlin before the city councils. In both of those southeastern Wisconsin cities, the city councils voted down the ballot drop boxes.
Diny wrote that he would also like to bring the question of ballot drop box use before the Wausau City Council in his statement.
Diny has also told various media outlets – including The New York Times and The Washington Post – that he moved the drop box Sunday because he believes the City Council should decide whether the city should use it.
“My position is that this city does not need one,” he told The Washington Post in an interview Wednesday.
Diny did not respond to calls from a reporter Thursday to clarify his earlier comments.
What has Diny said in the past about ballot drop boxes?
Diny has also made his views on ballot drop boxes clear in the past during at least two appearances on a local radio talk show.
During an appearance on the Meg Ellefson Show on May 1, Diny discussed the removal of Wausau's ballot drop box saying the locks were rusted shut and it was not functional.
“It was a point, I even mentioned it to the outgoing mayor (Katie Rosenberg),” Diny said on the show. “I think if it would have been removed it would have removed a hot button issue, so we’re just going to quietly remove that and go about business without any distractions.
“At this point I’ve committed to keeping it in storage and we’ll see how the court case turns out if there is one to challenge it,” Diny continued. “It’s not my property to destroy at this point or to dispose of, but also I think it is important to send the message to the city staff and our clerk and our elections officials.”
During a July 25 appearance on the show, shortly before the Aug. 13 fall primary election, Diny doubled-down on his views on ballot drop boxes, again stating his belief that they are controversial and unnecessary.
“I don’t think we need an absentee ballot drop box in Wausau,” Diny said on the July show. “I’m not comfortable with the unintended nature. Again, they are very controversial. More importantly, the clerk is very efficient already at conducting elections.
“If I can influence it, I have made my feelings known that we do not need the drop box and my intention is to work toward keeping the drop box where it is,” Diny continued.
Shortly after his July 25, interview Bernarde told a Wausau Daily Herald reporter the drop box was still having its locks repaired .
What does Wisconsin law say about ballot drop boxes?
The Wisconsin Supreme Court's July decision on Priorities USA v. WEC returned the right for Wisconsin municipal clerks to utilize drop boxes for absentee ballot collection.
The Wisconsin Elections Commission issued guidance on the decision that states, “the municipal clerk has the authority to designate drop box locations.”
The guidance cites the Priorities decision, which points to Wisconsin Statute 6.855 and says, “(the law) requires only that the ballot be delivered to a location the municipal clerk, within his or her discretion, designates.”
Did Diny commit a crime by removing the drop box?
The Wisconsin Elections Commission shared in its guidance a reference to Wisconsin Statute 12.60(1)(a) , which states that anyone who “by abduction, duress, or any fraudulent device or contrivance, impede(s) or prevent(s) the free exercise of the franchise at an election” could be guilty of a Class I felony. The Commission urged clerks to contact law enforcement if anyone tampers with, defaces, destroys, unlawfully empties, or interrupts, impedes or prevents the use of a drop box.
On Wednesday, Bernarde reported an election irregularity regarding the movement of the clerk’s office drop box to the Marathon County district attorney and the Wisconsin Elections Commission.
She referenced Wisconsin Statute 7.15(1)(g) , which directs municipal clerks to report “suspected election frauds, irregularities, or violations of which the clerk has knowledge to the district attorney for the county where the suspected activity occurs and to the commission.”
Marathon County District Attorney Theresa Wetzsteon has not responded to multiple phone calls and emails from a Wausau Daily Herald reporter to discuss a possible investigation or charges against Diny.
What do local and state leaders have to say about Diny’s action?
Reaction to Diny’s removal of the ballot drop box on Sunday has been swift and harsh, in many cases. It has also been clearly divided among political lines.
State Sen. Cory Tomczyk, R-Mosinee, who represents Wisconsin's 29th District, strongly supported Diny’s actions in a Thursday news release.
“... The law is ambiguous as to who has the ability to decide whether a municipality will choose to utilize ballot drop boxes or not,” Tomczyk wrote. “Mayor Diny was elected by the people of Wausau and therefore believes it is his duty to protect his constituents’ ballots to the best of his ability. I agree with him and stand with him.
“I also agree with Mayor Diny that, moving forward, if the Wausau City Council feels that it should be the entity that decides this issue and would like to take it up, then the council should bring it to a vote,” Tomczyk continued.
Yee Leng Xiong, the Democratic candidate for Wisconsin’s 85th Assembly District and former director of the Hmong American Center, called out Diny’s actions in a Wednesday news release and demanded the box be returned.
“This act by Mayor Diny goes against the rules we have in a democracy where voters should be able to cast their vote freely and in an accessible manner,” Xiong wrote.
Wisconsin Gov. Tony Evers, a Democrat, also weighed in on Diny’s actions on X (formerly Twitter) on Thursday.
“As elected officials, we should be working to make it easier – not harder – for every eligible Wisconsinite to cast their ballot. That’s democracy,” Evers said. “This drop box should be restored immediately.”
Erik Pfantz covers local government and education in central Wisconsin for USA TODAY NETWORK - Wisconsin and values his background as a rural Wisconsinite. Contact him at epfantz@gannett.com .
This article originally appeared on Wausau Daily Herald: Wausau mayor says city clerk is "out of her lane" for reporting ballot box interference
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