Kaul argues state law does not prohibit absentee ballot 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)

Wisconsin Attorney General Josh Kaul joined an ongoing legal battle over the use of absentee ballot drop boxes in the state’s elections, with the state Department of Justice filing a brief that argues state law does not prohibit their use. 

The brief, filed with the state Supreme Court Wednesday, sides with Priorities USA, the national non-profit group that brought the lawsuit against the prohibition. Democratic Gov. Tony Evers also joined the lawsuit earlier this month, arguing for the use of drop boxes. 

Drop boxes were banned by the state Supreme Court in 2021 when a group of Waukesha County voters challenged their legality. In a mixed opinion, the then-conservative controlled Court ruled that drop boxes were illegal because they weren’t staffed by municipal clerks or their employees. Prior to the ban, drop boxes had been used for years in 66 of the state’s 72 counties. At the time of that decision, there were 570 operating drop boxes across the state. 

The lawsuit asking the now-liberal controlled Court to overturn that decision was filed last July. 

“Voting should be safe, secure and accessible — and drop boxes are. Unfortunately, the use of drop boxes has been swept into the broader and baseless attacks on our elections and our democracy,” Kaul said in a statement. “Through our filing, we’re arguing that Wisconsin law does not prohibit the use of drop boxes, and that clerks should be able to determine whether to offer this convenient method of voting in their communities.”

The Court is set to hold oral arguments in the case next month. In the brief, Kaul argues that the previous decision was made because the Court misread state law and ignored the fact that Wisconsin’s elections are decentralized, giving significant control to municipal clerks to decide the tools with which to run their local elections. 

“Wisconsin’s election system relies on the efforts of more than 1,850 municipal clerks, who work unceasingly to administer fair and secure elections,” the brief states. “Teigen’s unstated premise is these clerks can take no steps to administer elections — an immense, complex effort taking place within strict time deadlines — unless that action is expressly authorized in an election statute. This view of Wisconsin election law is incompatible with the design of Wisconsin elections statutes, which vest discretion to municipal clerks and local elections officials to choose tools to assist them in properly administering elections responsive to the needs of their jurisdictions.” 

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