The Wisconsin Supreme Court has declined to take up Rebecca Kleefisch's lawsuit over ballot drop boxes

MADISON – A divided state Supreme Court declined Friday to take up a lawsuit challenging the power of the state Elections Commission brought by Republican candidate for governor Rebecca Kleefisch.

The court narrowly declined to take the case a week after agreeing to accept a separate case that challenges the use of ballot drop boxes — one of several issues raised by Kleefisch in her case.

In last week's decision, the justices ruled 4-3 that they would allow drop boxes to be used for the Feb. 15 spring primary and would decide later whether they could be used for other elections.

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Friday's decision not to take Kleefisch's case fell along the same lines, with Justice Brian Hagedorn joining the court's three liberals. Hagedorn was elected in 2019 with the support of Republicans but has split with conservatives on some high-profile issues.

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Kleefisch in November filed her lawsuit directly with the Supreme Court rather than starting in circuit court, where most cases begin. The majority did not explain its reasoning for not taking Kleefisch's lawsuit but the court often avoids taking cases that are directly filed with it.

Writing for the dissenters, Justice Patience Roggensack argued the court should have taken the case so it could address the scope of the Wisconsin Elections Commission's power after repeatedly being asked to do so. She contended the majority "sidesteps its obligation to hear the continuing cry of Wisconsin voters and address absentee ballot issues."

"The legality of absentee ballot guidance from WEC has been simmering since 2020, and will likely continue until we thoroughly address absentee ballot issues generated by WEC," she wrote.

She was joined in dissent by Chief Justice Annette Ziegler and Justice Rebecca Bradley.

The majority consisted of Hagedorn and Justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky. (The Bradleys are not related.)

Kleefisch, who served for eight years as lieutenant governor, asked the court to rule that ballot drop boxes could not be used and that election officials had to follow a law requiring poll workers to be sent to nursing homes to assist with voting.

The commission told election clerks to ignore that law during the coronavirus pandemic and send nursing home residents absentee ballots instead. The commissioners said they took that approach because nursing homes weren't allowing visitors at the time.

Kleefisch's lawsuit also sought to prevent election officials from closing polling places at the last minute, as some of them did in the early stages of the pandemic. In addition, Kleefisch asked the court to force the Elections Commission to adopt formal rules on some of its practices, which would give Republicans who control the Legislature a chance to block the commission's policies.

On Twitter, Kleefisch expressed frustration with the court's decision not to take her case and hinted she could take further legal action.

"I am committed to ensuring the integrity of our elections and making sure our laws are followed because clearly no one else will. To be continued," she tweeted.

Kleefisch has used the lawsuit as a way to raise campaign funds. She told donors shortly after she filed the lawsuit that her first legal bill came to nearly $50,000.

Kleefisch faces Delafield management consultant Kevin Nicholson in the August primary. The winner will take on Democratic Gov. Tony Evers.

Both Kleefisch and Nicholson have called for eliminating the Elections Commission. Republican lawmakers voted to create the commission in 2015 but have been frustrated at times with how it operates. The commission consists of three Republicans and three Democrats.

Republicans in recent years have called for overhauling election laws, with Kleefisch saying she wants to rescind the heart of a law that allows elderly and disabled voters to get absentee ballots without showing a photo ID if they say they are indefinitely confined.

Kleefisch for part of 2020 was listed as an indefinitely confined voter. She said she was put on the list inadvertently and had the mistake corrected when she learned of it.

Court to decide on drop boxes

In the lawsuit the court took last week, the justices will decide whether ballot drop boxes can be used for this fall's race for governor. That case also centers on whether voters can give their absentee ballots to someone else to turn into election clerks for them.

The case was brought last summer by two suburban Milwaukee men represented by the conservative Wisconsin Institute for Law & Liberty.

A Waukesha County judge ruled against ballot drop boxes, but an appeals court blocked his ruling for the Feb. 15 primary for Milwaukee mayor and other offices. The Supreme Court upheld the appeals court decision while it considers the case.

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: Court declines to take up Kleefisch lawsuit over ballot drop boxes