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Judge rules drop boxes for absentee ballots are illegal

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City of Madison ballot drop box.

Hearing on Lawsuit to Block Drop Boxes

MADISON (WKOW) -- A Waukesha County judge ruled Thursday afternoon the state elections commission gave illegal advice when it told clerks in 2020 they could set up unmanned drop boxes to collect absentee ballots.

Judge Michael O. Bohren handed down the decision in a case brought by voters Richard Teigen and Richard Thom, who believed the use of drop boxes was in conflict with state law.

Bohren ruled the Wisconsin Elections Commission (WEC) would need to inform clerks its previous guidance was null by January 27. If the ruling stays in place, unmanned drop boxes won't be allowed for the next election in Wisconsin, a primary set for February 15.

The ruling also orders that only voters themselves can return their absentee ballots; the guidance in question allowed a close relative or guardian to deliver a ballot.

Voters seeking to deliver an absentee ballot must do so either in person at their municipal clerk's office or through the mail.

"Staff and WEC commissioners plan to review the court's order and consult with legal counsel in the coming days," a WEC spokesperson said Thursday.

Teigen and Thom were represented by the conservative Wisconsin Institute for Law and Liberty (WILL), which argued state law clearly requires any changes to election law to have the legislature's approval.

WEC's six-member board of three Democratic and three Republican appointees approved guidance allowing clerks to establish the drop boxes.

WEC argued its guidance was unique to the COVID-19 pandemic and couldn't have undermined state law because it was merely guidance that had no way of being enforced.

WILL lawyer Luke Berg argued WEC's guidance ultimately carried a lot of weight with local election officials who look to the commission for direction.

"[WEC] is charged with administering the election laws and is charged with providing guidance to clerks so when it says something is lawful, municipal clerks follow its lead," Berg said. 

Representing the elections commission, Steven Kilpatrick countered clerks had made a great effort to ensure the drop boxes were secure.

"The commission is not advocating or recommending that municipal clerks leave their shoe box on a park bench to collect absentee ballots," Kilpatrick said. 

Bohren said the changes to election policies would only be valid if WEC enacted them as an administrative rule, which would need to be approved by lawmakers on the Joint Committee for the Review of Administration Rules (JCRAR).

In its review of the 2020 election, the nonpartisan Legislative Audit Bureau found no proof of widespread fraud but suggested dozens of changes WEC could make in the future, including the establishment of formal rules on issues like drop boxes instead of written guidance.

Capitol Bureau Chief

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