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Why WILL is suing over Wisconsin's use of election drop boxes

Susan Bence
A ballot drop box in Milwaukee.

Republican lawmakers are working on legislation that could reshape how elections are run in Wisconsin. They’re suing in state courts and fast-tracking bills in the Wisconsin Legislature.

Lake Effect heard from disability rights advocates on how some of the proposed legislation would impact voters living with disabilities. They say the bills and litigation that would restrict access to drop boxes and limit who can return absentee ballots could create barriers to voting.

The conservative law firm Wisconsin Institute for Law and Liberty, known as WILL, filed the lawsuit that’s trying to regulate drop box use and who can return ballots. Rick Esenberg, the president and general counsel at WILL shares more about the litigation.

First, WILL has engaged in its own review of the 2020 election and issued recommendations for reform. Esenberg says there wasn't any evidence that an election was "stolen," for lack of a better term. But he argues that the number of ballots cast in ways that are not actually permitted by law exceeded the margin of victory in the presidential race.

He also contends that private funding of election administration had some impact on the vote totals for for the Democratic candidate. He also claims the election could have been more secure.

Why focus on absentee ballot drop boxes?

Esenberg says, "It has been our view for a long time now that the state election law only permits absentee ballots to be returned in two ways: you must either place it in the United States mail or you must return it to the clerk in person."

Esenberg indicates there is no provision in Wisconsin election law for either drop boxes or for returning your ballot by giving it to somebody else who will return it.

That's why WILL sued in Teigen v. Wisconsin Elections Commission, a case now pending before the Wisconsin Supreme Court. Drop boxes beyond those located outside municipal clerks' offices will not be available in the upcoming April 5 elections, but the court hasn't yet decided their ultimate fate.

WILL is also asking the court to ultimately uphold the trial court's ruling that a voter must return their own ballot to the drop box. "Having somebody else return your ballot for you, that will not be permitted in the in the April election and may not be permitted going forward depending upon how the Wisconsin Supreme Court decides the case," says Esenberg.

Esenberg says the intent of the suit is not to make returning a ballot through someone else a criminal violation. But he notes that there are other statutes that might, under certain circumstances, make returning a ballot through someone else criminal.

The case WILL brought forward is simply trying to clarify what the law is going forward, he says.

"Even if we think those changes are a good idea, they have to be enacted by the Legislature. And if the law does not permit them, then, you know, we have to adhere to what the law requires. Because, again, an election is a contest. We need to adhere to the rules that were set prior to the beginning of the contest," says Esenberg.

Some political analysts, like Professor Barry Burden, of the University of Wisconsin-Madison, say that voters have appreciated having drop box access. Burden says they are more secure than the U.S. Postal Service system, they're monitored, and some have cameras on them 24/7.

Esenberg says even if drop boxes are arguably a good thing, it's not up to the Wisconsin Election Commission or the courts to make that determination.

"Perhaps Professor Burden is right, but that doesn't mean that the Wisconsin Election Commission can just decide to have drop boxes because Professor Burden thinks they're a good idea, or even [because] the Wisconsin Election Commission thinks they're a good idea. They have to be enacted into law [by the legislature]," he says.

Esenberg says his firm is not saying drop boxes contribute to widespread voter fraud, rather highlighting that drop boxes are not authorized by law.

WILL has noted that the current political environment is one "charged with partisanship." In its 2020 election review, WILL wrote that it found that "this widespread adoption of absentee ballot drop boxes, not provided for under Wisconsin law, was correlated with an increase of about 20,000 votes for Joe Biden while having no significant effect on the vote for Trump."

The report continued that it “does not claim that the voters who used drop boxes were ineligible voters or should have had their votes rejected.” But the organization said drop boxes without established security present an “election vulnerability and a challenge to state law.”

In 2020, Biden won Wisconsin by a razor thin margin: 20,608 votes. Even though WILL claims that drop box use was correlated to an increase of about 20,000 votes for Joe Biden "while having no significant effect on the vote for Trump," Esenberg brushed aside a question as to whether the legal attacks on drop boxes were of a partisan nature.

"Following the law can't be reduced to a simple partisan exercise and a question of who benefits. The rule of law is important in election cases, I think it's a little bit too easy to just dismiss this as a partisan exercise. I think that they're very, very legitimate rule of law and security concerns here," he says.

Esenberg says the the political parties have long been entrenched in their positions on election security issues. From his perspective, Republicans have been consistent about election security and the potential of voter fraud while Democrats did not have heightened concern over those issues when a Republican won.

He contends that Democrats have always emphasized what they regard as voter suppression.

"I think both parties sort of have what they want to emphasize about elections sort of staked out and it doesn't really change depending upon what happened in the last election," says Esenberg.

Maayan is a WUWM news reporter.
Kobe Brown was WUWM's fifth Eric Von fellow.
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