A state appeals court stayed a judge’s restrictions on the use of absentee ballot drop boxes Monday, finding that curtailing their locations with the spring primary only weeks away could confuse and disenfranchise voters.
The Wisconsin Elections Commission issued guidance to clerks in March 2020 as the COVID-19 pandemic was taking hold that they could place drop boxes wherever they wish in an effort to avoid spreading infection in long lines at the polls. A number of Wisconsin municipalities placed them in multiple locations during the 2020 presidential election, including city parks.
Republicans claimed that would open the door to fraud, although to this day they have not been able to produce any evidence of widespread fraud. The conservative law firm Wisconsin Institute for Law and Liberty filed a lawsuit in June seeking to invalidate the commission's guidance.
Waukesha County Circuit Judge Michael Bohren sided with the firm in a Jan. 13 ruling, saying the commission lacked legal basis to issue the guidance.
The ruling meant election officials couldn’t place drop boxes anywhere but in clerks’ offices for the Feb. 15 spring primary elections, nullifying Democrats' efforts to place the boxes in as many locations as possible to make voting more convenient and increase turnout.
An array of groups, including the Wisconsin Elections Commission and the League of Women Voters, asked Bohren to stay the ruling on Friday. He refused and gave the commission until Monday to rescind guidance to clerks that said they could place drop boxes in multiple locations.
The groups asked the 4th District Court of Appeals for a stay. The three-person court ruled to issue it Monday in a unanimous decision.
The court noted that, according to the commission, nearly 8,400 absentee ballots have already been sent to voters, and many of those voters may have already deposited their ballots in drop boxes or given their ballots to someone else to mail in or return for them.
If the commission withdraws its guidance now it could create questions about whether those ballots would be counted, the court said.
“The potential for voter confusion and uncertainty in administration is apparent in this situation,” the court said in a 10-page opinion.
The court added that there's no evidence that holding elections according to the commission's existing guidance would harm voters, election administrators or anyone else.
Luke Berg, an attorney with the Wisconsin Institute for Law and Liberty, said the firm was confident the ruling would be upheld and would “evaluate its options.” He did not elaborate.
The firm's only option would be to ask the conservative-leaning state Supreme Court to overturn the appellate ruling and reinstate Bohren's decision.
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