WATERTOWN, Wis. — In battleground Wisconsin, election law has changed once again.
Unelected state election officials approved unenforceable rules Thursday for the administration of unmanned ballot drop boxes for the November election. More than 1,800 local election clerks will determine whether and how to use such boxes after the Wisconsin Supreme Court overturned its 2022 decision banning unmanned ballot drop boxes, thanks to the court’s new liberal majority.
Commissioners disagreed on some of the finer points of the new rules. Republican Commissioner Bob Spindell wanted to include guidelines instructing voters to seal their absentee-ballot envelopes before inserting them into the drop boxes.
“That’s too ticky-tacky, Bob,” said Democratic Commission Chair Ann Jacobs, who ran the meeting and was in the box behind Biden when he visited Madison for a rally last Friday, the same day the state Supreme Court ruling came down.
The commissioners debated rules for how the drop boxes should be emptied and when and disagreed over whether to include chain-of-custody language. Chair Jacobs won that argument over Spindell’s concerns, and her preferred language will be used in the guidelines: “Ballots retrieved from a drop box shall be transported securely to the office of the clerk.”
Absentee ballots are a controversial issue in Wisconsin, with a history of human error creating havoc on election night and former President Donald Trump’s lawsuit challenging the state’s presidential-election outcome in 2020, including votes cast by absentee ballots.
A liberal Dane County judge altered state election law this month with a ruling that made an exception to absentee-ballot rules for disabled voters.
The Wisconsin Supreme Court overturned its previous ruling on the legality of unmanned ballot boxes In Teigen v. Wisconsin Elections Commission last week.
The move came mere months before the election, overturning a 2022 decision when the court had a conservative majority and determined Wisconsin election law did not allow for unmanned ballot drop boxes.
“The legitimacy of elections continues to be questioned, each side accusing the other of ‘election interference’ and ‘threatening democracy,’” conservative Justice Rebecca Bradley wrote in her dissent. “Or even the very foundation of our constitutional republic. The majority’s decision in this case will only fuel the fires of suspicion.”
The Wisconsin Institute for Law and Liberty filed the lawsuit in 2021 on behalf of two voters, which led to the original ruling banning use of unmanned ballot drop boxes for the collection of absentee ballots after the state used them in the 2020 elections.
“We did a report on the 2020 election, and one of the things we concluded was that there wasn’t any uniformity with respect to how drop boxes were handled. Some municipalities did a good job of keeping them monitored and secured, what they took out,” Rick Esenberg, WILL president and general counsel, told The Post. “And others didn’t.”
Kathy Bernier, a former county clerk and former state senator, recently stepped down as state director of Keep our Republic, whose mission is to protect “a republic of laws and strengthening the checks and balances of our democratic electoral system.” She thinks establishing a chain of custody for ballot retrieval should be standard, “They need to document who retrieved the ballots” from the drop boxes, Bernier told The Post. “How many they retrieved, at what time.”
“Chain of custody just means that you document what you did and how you did it,” Bernier explained. “We have chain of custody for lots of things in the electoral process.”
A chain of custody creates a record for an absentee ballot that can be checked by the clerks or by the voter who cast the ballot. If there’s not a documented chain of custody, the concern is that neither the voter nor election officials will be able to determine where or how the absentee ballot was delivered: via the mail or dropped off in person or at a ballot drop box.
“That information is very valuable,” said Bernier, “It’s the who, what, when, where and how of that ballot.”
“If they want the rule to govern the election,” Esenberg told The Post before the commission met to discuss guidelines, “then they are going to have to make an emergency rule.”
The commission did not vote to make an emergency rule, which means the guidance does not bear the full weight of law and is not enforceable. Individual municipal clerks can use the guidance, and many will, but the administration of unmanned ballot boxes for the presidential election in Wisconsin will be determined municipality by municipality this fall.
“The problem with the state Supreme Court decision,” opined Esenberg, “is that they kind of made it up. There is no authorization of ballot drop boxes [in state law] — it quite clearly excludes them.”
