Wisconsin struggles to set standard for ballot drop boxes

Voters will use the ballot box again this fall Wisconsin, one of the few key states that could decide the Nov. 5 presidential election, is raising concerns among election integrity advocates.

The dissenting opinion in the state Supreme Court decision reinstating the drop boxes argued that insufficient standards could allow an “unattended cardboard box” or “unsecured bag” to be used as a ballot box.

Others, however, hope that concerned citizens will manage to prevent this.

“Knowing that they are being monitored by concerned citizens helps prevent the use of cardboard boxes,” Annette Olson, CEO of the John K. MacIver Institute for Public Policy, a conservative think tank, told the Daily Signal.

Olson is also coordinator of the Wisconsin Election Integrity Coalition, which has tried to work with local election officials.

In July, the Wisconsin Supreme Court’s 4-3 liberal majority overturned a 2022 decision by a previous conservative majority that found no state law allowed the use of drop boxes. Wisconsin law says absentee ballots can be mailed or returned to the municipal clerk’s office.

Last month, the new majority ruled that a clerk can designate an “alternate absentee ballot site” as a “location designated by the municipal clerk outside the municipal clerk’s office where voters may request, vote and return absentee ballots.”

Justice Ann Walsh Bradley wrote the majority opinion.

In a dissenting opinion, Justice Rebecca Bradley wrote that the Court majority “dismantles the carefully regulated privilege of mail-in voting.”

“A cardboard box left unattended in the aisle of the polling place? An unsecured bag left outside the local library or on a college campus? A door-to-door collection at voters’ homes or dorms?” Bradley argues in his dissenting opinion. “By the majority’s logic, because the law does not expressly prohibit such methods of ballot delivery, they are perfectly legal.”

A ballot drop box near a clerk’s office would be consistent with existing law, MacIver’s Olson said.

“It makes sense to have a ballot drop box near the city clerk’s office if the clerk isn’t there,” she said. “If it’s going to be drop boxes in front of every fire station, that’s a little overkill.”

To maintain confidence in elections, Olson argued, votes should be as verifiable as a financial transaction made at an ATM.

Celestine Jeffreys, city clerk for Green Bay, Wisconsin, said all ballot drop boxes will be monitored by camera, and the city’s tracking will ensure that the number of ballots collected from the boxes matches the number of envelopes dropped off.

“A lot of other states use ballot drop boxes. The city of Green Bay follows best practices,” Jeffreys told the Daily Signal, before referencing the Americans With Disabilities Act. “Ballot boxes have to be accessible to people with disabilities. Best practices in other states are also walk-in or drive-in ballot boxes.”

Jeffreys said she was not aware of any mass ballot deposits at Green Bay drop boxes. Only people authorized to do so can drop off multiple ballots, such as a person authorized to care for a disabled person, she said.

“Ballot drop boxes are secure. It’s not like a mailbox. It’s narrow and you can only put one envelope in at a time, maybe two envelopes,” Jeffreys said. “If someone wanted to drop off 30 ballots, it would take a long time.”

She said she wants to improve drop boxes starting in 2020, not only for safety reasons, but also to be more accessible under the Americans With Disabilities Act and to be convenient for pedestrians or motorists.

The city clerk’s offices in Madison, Milwaukee and Kenosha did not respond to requests for comment for this article.

The Wisconsin Supreme Court embarrassed itself with that decision, said Ken Cuccinelli, president of the Election Transparency Initiative and a former Virginia attorney general.

“In Wisconsin, four out of seven judges simply rewrote their own law,” Cuccinelli told the Daily Signal.

“The Wisconsin Elections Commission allowed drop boxes because of COVID,” Cuccinelli said. “But it’s not in the law. It was a ridiculous legal case. It should be a disgrace to those judges.”

A spokesperson for the Wisconsin Elections Commission referred questions to its website and information posted there.

The agency said it would provide training to local officials. It also said residents would be allowed to monitor drop boxes as long as it does not interfere with voting.

“The decision established that state law permits clerks to lawfully use secure drop boxes in the exercise of their statutory discretion,” the Wisconsin Elections Commission said of the state Supreme Court’s decision. “The decision did not provide guidance on what it means for a drop box to be ‘secure.’”

The commission suggests that “staff conduct a thorough security assessment of each planned drop box location prior to deployment.”

The Wisconsin Legislative Audit Bureau, a state agency, released a report in October 2021 that found drop boxes were at the center of questions about the 2020 presidential election.

“In total, 26 of the 47 municipal clerks we contacted indicated that they used drop boxes, municipal return slots, or similar receptacles for the November 2020 general election,” the report states. “We found that: 25 clerks indicated that their drop boxes were locked or had tamper-proof seals; … and 14 clerks indicated that they used cameras or local law enforcement surveillance to monitor their drop boxes.”

The agency’s report recommended that if drop boxes continue to be used in elections, the Wisconsin Elections Commission should “establish minimum requirements for securing drop boxes, as well as prescribe where clerks could place drop boxes and how often clerks would be required to retrieve absentee ballots from drop boxes.”

The report also said the state legislature could consider amending statutes to clarify whether “individuals are allowed to return mail ballots to the ballot drop box.”