MADISON, Wis. (CN) — The Wisconsin Supreme Court on Monday heard arguments in a case seeking to reverse the state's ban on absentee ballot drop boxes, which the court implemented two years ago under its previous conservative majority.
A progressive super PAC filed a lawsuit in July 2023 hoping to get rid of multiple absentee voting rules it claims violate the Wisconsin Constitution. A Dane County Circuit Court judge dismissed most of the group's claims in January, prompting the PAC to drop the suit and take the case directly to the freshly liberal-majority state Supreme Court, which only agreed to hear its claim about the legality of secure drop boxes for voters to deposit absentee ballots.
In 2022, when the high court had a 4-3 conservative majority, the justices banned the use of ballot drop boxes, finding that nothing in state law permitted them. In the lead opinion, Justice Rebecca Grassl Bradley compared drop boxes’ unlawful use to tyrants breaking the law to win elections.
In a concurring opinion in 2020, Bradley urged the court to overrule its decision in one of Donald Trump’s failed challenges to Wisconsin’s election results that year, saying it gave the bipartisan Wisconsin Elections Commission too much power.
The election of Justice Janet Protasiewicz last year flipped the court from conservative to liberal control for the first time in more than a decade. The new majority has since acted on challenges to some of its predecessor’s most politically consequential actions, including a redistricting lawsuit that resulted in Republican-gerrymandered legislative voting maps getting tossed and replaced with maps that give Democrats better odds in many legislative races.
Two years ago, the competing arguments over whether drop boxes were legal boiled down to whether state law’s silence on the issue meant they were permitted or prohibited. Similar arguments were presented on Monday along similarly partisan lines.
Bradley on Monday repeatedly questioned the plaintiffs’ lawyer David Fox about where state statute references drop boxes or anything like them, what the limits on absentee voting would be under the plaintiffs’ arguments, and whether the plaintiffs are saying that clerks should have “absolutely free rein” to disregard the letter of the law to accept absentee ballots as long as they think their solutions are workable.
Fox said that the court’s previous decision “read a restriction into the statute that simply is not there." He argued that the statutory scheme read as a whole only requires returning ballots to municipal clerks and says little to nothing about how that can be done.
Prompted by liberal justices’ questioning, Fox, who works for the Democratic Party-aligned Elias Law Group in Washington, noted there was no evidence of fraud or any other illegal conduct connected to drop boxes during the 2020 election.
Assistant Attorney General Faye Hipsman represented the Wisconsin Elections Commission, the nominal defendant in the PAC’s lawsuit.
“The commission fully agrees that drop boxes are permitted under Wisconsin statutes,” Hipsman said.
Misha Tseytlin, a Chicago-based attorney with Troutman Pepper who was Wisconsin’s solicitor general under former Republican Governor Scott Walker, opened his arguments for the Legislature by noting that the court settled this matter two years ago. Nothing in the law, the facts or the arguments has changed since then, so the decision should stand, he said.
Tseytlin argued for maintaining stare decisis, a legal doctrine emphasizing adherence to precedent.
This prompted liberal Justice Jill Karofsky to quote U.S. Supreme Court Justice Samuel Alito’s majority opinion that overturned Roe v. Wade. Karofsky asked Tseytlin what the court should do if they thought the previous drop box decision was “egregiously wrong,” using Alito’s language.
Tseytlin refuted the comparison and maintained that, as noted in the previous decision, drop boxes present difficult questions of statutory interpretation that can lead to “reasonable disagreement between justices of good faith.”
Liberal Justice Rebecca Dallet resisted a textualist statutory interpretation that bans drop boxes just because the law does not explicitly allow them. State law cannot possibly encompass everything that may come up for municipal clerks, who make hundreds of independent decisions a day in Wisconsin’s decentralized elections system, she said.
Tseytlin, who frequently represents the Wisconsin Republican-controlled Legislature in court, predicted that if the current court overturns the previous court's ruling, the issue of drop boxes would keep coming up whenever the court’s composition changes.
If the court is going to overturn just because they think the previous court got it wrong two years ago under the same arguments, the justices “should just say stare decisis is dead,” Tseytlin said.
Last month, longtime liberal Justice Ann Walsh Bradley announced she will not run for reelection when her term expires next year, setting up what will likely be a heated contest for her seat and, potentially, another change in the majority's politics.
The justices gave no timeline for their decision at close of arguments on Monday. A decision ahead of the 2024 general election could have major implications for absentee voting in a crucial swing state where elections are routinely decided by thin margins.
Joe Biden won the state in 2020 by just over 20,000 votes, similar to Trump's margin of victory in 2016.
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