Bob Koch
Madison kept its ballot boxes in place after the 2022 Wisconsin Supreme Court ruling, including this one in front of the city's north-side fire station at 1517 Troy Drive.
Municipalities across Wisconsin were forced to shutter some 500 ballot drop boxes after the state Supreme Court ruled in July 2022 that unstaffed ballot drop boxes could not be used to vote abstentee. But with the court’s liberal majority now appearing willing to overturn its decision, those same municipalities could reinstate the drop boxes in time for the August primary.
“It shouldn’t take any time at all for the city to be able to use those boxes again,” Madison City Attorney Michael Haas tells Isthmus.
The court’s ruling in Teigen v. Wisconsin Elections Commission prohibited the use of ballot drop boxes outside of election offices. The court also said only the Legislature could authorize drop boxes and that only an individual voter, not a third party, could return their absentee ballot to the clerk’s office.
The decision was considered a major defeat for voting and disability rights groups. And in Wisconsin, a battleground state and hot spot for visits from President Joe Biden, Vice President Kamala Harris and former President Donald Trump, reinstating ballot box voting could have significant impacts on the presidential race’s turnout.
On May 13, the court — now with a 4-3 liberal majority due to the 2023 election of Justice Janet Protasiewicz — heard oral arguments in Priorities U.S.A. v. WEC. The liberal justices appeared open to overturning the Teigen decision while the conservative justices largely balked at the prospect of a reversal. Justice Rebecca Bradley said one appellant was asking the court to become a “super Legislature.”
State Republicans are watching closely. Wisconsin GOP Chair Brian Schimming told reporters at the May 18 state GOP convention that Republicans need to be “realistic” and are prepared to “do what it takes to win” if the drop box ban is overturned. Drop boxes have been a frequent target of conservative criticism in recent years, with some Republicans, including Trump, pointing to their use as part of unfounded claims around voting fraud.
Ballot drop boxes have been used in Wisconsin for decades. When COVID-19 hit in 2020, there was widespread concern about in-person voting and interest in absentee voting skyrocketed. But there were also worries about mail-in ballot delays. In an August 2020 report, the Wisconsin Elections Commission recommended that city officials install one drop box for every 15,000-20,000 registered voters. Municipal clerks and local election officials were told that the boxes needed to be kept secured, monitored and “regularly emptied.” Meagan Wolfe, administrator of the Wisconsin Elections Commission, said in 2021 that she was aware of 570 drop boxes across 66 of the 72 counties in Wisconsin.
What officials did with the defunct drop boxes varied by municipality. Haas tells Isthmus that Madison’s only legal obligation was to make sure the boxes were no longer in use for voting. In October 2022, Madison Mayor Satya Rhodes-Conway directed the city to transform the boxes into “pro-democracy” art.
“They just remained locked,” Haas says. “They've just essentially been works of public art since the court decision.”
The city’s 14 boxes now feature the quote “truth is powerful and will prevail” from 19th century abolitionist Sojourner Truth and instructions for turning in absentee ballots. In an October 2022 statement, Rhodes-Conway criticized the Supreme Court’s decision as “one in a long line of decisions” negatively impacting Wisconsin voters, particularly voters of color and people with disabilities
“Rather than removing these secure ballot drop boxes, we wanted to transform them to share the powerful words of Sojourner Truth and to convey our community’s belief in democracy, voting rights and the prevailing power of truth,” Rhodes-Conway said.
Some municipalities removed the boxes. Rebecca Draeger, deputy city clerk of Eau Claire, tells Isthmus the city likely kept them in storage after they went out of use. Draeger was not in office at the time. Eau Claire, with 71,304 residents, had four drop boxes in 2020; 7,958 city residents used them to vote absentee in the 2020 presidential election. The drop boxes were last used in the April 2021 general election. The city planned to use one drop box for the February 2022 primary but a Waukesha County judge ruled in January 2022 that it was forbidden under the court ruling.
In New London, a city with 7,398 residents, City Clerk Nicole Ryerson says the city only had one drop box, located in the mayor’s office. Delays in shipping mail-in ballots are a concern without the option of a drop box, Ryerson says — she recalls once receiving three absentee ballots after Election Day.
“I know three’s like, not very many, but I have a municipality of 250 absentee ballots, so it’s not great,” Ryerson says.
Unstaffed drop boxes, which the WEC recommends be made out of a “durable material” and cemented to the ground, can cost as much as $6,000. Haas says Madison spent around $62,000 on the 14 boxes they purchased in 2020, using grant money from the Center for Tech and Civic Life. That group has come under fire from conservatives for its ties to Meta magnate Mark Zuckerberg and his wife, Priscilla Chan.
Still, Haas says the use of drop boxes, should they be deemed legal again, should not be threatened by the constitutional amendment approved by voters in March that forbids the use of third-party money in election administration.
“[The amendment] essentially became law after those were purchased,” Haas says.
Were the Court to overturn its Teigen decision, the next steps for some municipalities could be as simple as just unlocking the boxes and making sure they are secured.
Madison could have its boxes operable “pretty immediately,” Haas says.
Reinstalling the boxes is on the minds of other cities’ officials, too. Draeger says Eau Claire “would certainly look into [reinstalling] boxes” if the court were to overturn the decision, but that the city would first consult with its legal counsel and come up with a plan. Ryerson, the New London city clerk, says New London would likely want to use its drop box again if allowed to do so.
Though there is not a statutory deadline for the drop boxes to be authorized for use prior to an election, Haas notes that clerks are bound by federal and state law to send out absentee ballots 47 days prior to a federal election and to send voting instructions with those ballots.
He says Madison could still use the drop boxes if a decision from the court came after that deadline, but the city would need to publicize that the drop boxes are again available. “It's not absolutely required before the mailing goes out,” says Haas. “But that would be the best scenario for the clerks.”
