Wisconsin clerks rush to rewrite voting instructions after judge rules absentee ballot drop boxes are illegal

MADISON — Election clerks around Wisconsin scrambled to rewrite their instructions to voters Friday after a judge ruled absentee ballot drop boxes aren’t allowed under state law.

Thursday's ruling by Waukesha County Circuit Court Judge Michael Bohren is likely to be appealed in the next week or so. For now, clerks are assuming the decision will remain in place and changing what they’re telling voters ahead of next month’s spring primary for local offices.

Sara Bruckman, the village clerk in Fox Point and the president of the Wisconsin Municipal Clerks Association, said she was writing new information to include with absentee ballots so voters know they will be allowed to return them only by mail or in person. Those ballots are to go out on Jan. 25.

She noted the rules could change again between then and the Feb. 15 primary as judges consider an appeal.

"It takes away the public's ability to trust us because we are constantly changing what we're told to do and then we have to tell them that we're changing what we're told to do,” she said. "So it just inserts more distrust into the process that does not need to be there."

The drop box outside of Fox Point’s village hall is used for absentee ballots as well as tax payments and utility bills. Bruckman said she planned to put a sign on it saying ballots would no longer be accepted there.

Brookfield's interim clerk, Renee Tadych, was making similar plans for the multi-use drop box in the parking lot of city hall.

She said she still needed to figure out what to do if voters placed ballots in the drop box. If voters use the drop box in the days before an election, there would not be time to return them to the voters so they could re-submit them, she said.

“My question is, then what? What do we do? How do we get a hold of the voter? Do we mail the ballot out? You know, I don't know those answers,” she said.

The ruling is most disruptive in Milwaukee and other urban centers because they have so many ballot drop boxes.

Milwaukee installed 15 secure drop boxes at libraries and other locations in September 2020 using $70,000 from a grant from the non-profit Center for Tech and Civic Life. The drop boxes are under 24-hour video surveillance.

About half the absentee ballots mailed to voters were returned via drop boxes for the 2020 presidential election, said Claire Woodall-Vogg, the director of the Milwaukee Election Commission.

Election officials will need to rewrite instructions to voters for about 20,000 absentee ballots that will soon be mailed for the spring primary, she said. On Friday, a large-font notice on the city's website noted the court ruling barred the use of the drop boxes for now.

The latest ruling comes after years of election litigation that resulted in a flurry of court decisions with last-minute rule changes, Woodall-Vogg noted.

"Per usual, Wisconsin voters will have to navigate ever-changing election law with another court ruling less than 45 days from an election," she said by email.

The February primary may be busier than usual in Milwaukee because of the six-way race for mayor. The two who get the most votes will advance to the April 5 general election.

Clerks around the state greatly expanded their use of absentee ballot drop boxes in 2020 when voters turned in record numbers to absentee voting because of the coronavirus pandemic.

Last summer, two suburban Milwaukee men sued over their use with the assistance of the conservative Wisconsin Institute for Law & Liberty. On Thursday, Bohren sided with them and said state law allowed absentee ballots to be returned only in person or by mail.

Drop boxes can be used only if they are in clerk’s offices and staffed by a poll worker, he ruled.

Bohren’s ruling also barred people from returning any absentee ballots other than their own. That means political groups can’t pick up ballots for voters, but also that people can’t return the ballots of their spouses, parents or neighbors.

Rev. Greg Lewis, the executive director of the voting rights group Souls to the Polls, said the decision was one of a "litany of obstacles" that have been put in front of voters in recent years.

"I just think it's a ruthless attempt to discourage voters," he said. "It's just simply total reckless political sabotage of the election process."

Luke Berg, an attorney with WILL, disputed that.

“Voting in Wisconsin already is very, very easy and this case is not about putting obstacles in the way of voters," he said.

"We agree that voting should be easy and maybe even drop boxes should be legal. The question is what does state law currently allow and can the (state) Elections Commission just change the rules on their own? And they can't. The Legislature has to be the one to consider alternate methods of voting and discuss how to keep those secure and safe."

Bohren issued his ruling from the bench and is expected to enter a written order within days.

Once that happens, those opposing his decision will likely appeal, said Jeffrey Mandell, an attorney involved in the case who represents Disability Rights Wisconsin and the League of Women Voters of Wisconsin.

Specifically, Bohren said he would order the state Elections Commission to withdraw advice it has issued that says clerks can use ballot drop boxes.

Wisconsin clerks have latitude to run elections as they see fit but tend to adhere to the advice of the state commission, said Mike Haas, the former director of the commission and current city attorney in Madison.

The ruling caused consternation in urban and suburban areas but will likely have a muted effect in rural parts of the state.

Claudia Fields, the village clerk in Alma Center in western Wisconsin, said her community does not use a ballot drop box because it has so few voters.

"It's not going to affect us," she said of the court ruling.

Alison Dirr of the Journal Sentinel staff contributed to this report.

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.

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This article originally appeared on Milwaukee Journal Sentinel: Wisconsin clerks rewrite voting rules after judge bans ballot drop boxes