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Voter drop boxes and assistance for absentee voters go before Wisconsin Supreme Court

Wisconsin Supreme Court
Screen grab from WisconsinEye
The Wisconsin Supreme Court hears the voter drop box case Wednesday, at the State Capitol in Madison.

The fate of drop boxes for absentee voting in Wisconsin is now in the hands of the state Supreme Court, after the seven justices heard oral arguments on a case Wednesday. A ruling expected by this summer could also clarify whether voters can be assisted when submitting a ballot.

The state's high court heard the case a few months after a Waukesha County court issued a decision aimed to curtail use of the voting drop boxes, which often look like secure metal postal boxes. The drop boxes became popular during COVID-19 surges, as more people preferred to vote absentee and not go into buildings to cast or drop off their ballot. Or, voters didn't want to rely on the U.S. Post Service to deliver their absentee ballot on time.

Chuck Quirmbach
Milwaukee election workers empty a voter drop box outside Centennial Hall in downtown Milwaukee at 7:32 p.m. on November 3, 2020, as a Milwaukee police officer stands nearby.

More than 500 drop boxes were used in Wisconsin in 2020.

The drop boxes were allowed statewide during the February primary this year, but use was cut back in this month's elections. If the contests for Wisconsin Senate and governor are close this fall, political analysts say drop box availability could make a difference in the results.

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Milwaukee attorney Rick Esenberg, of the Wisconsin Institute for Law and Liberty, speaks during Wednesday's oral arguments.

During oral arguments before the state Supreme Court Wednesday, Milwaukee lawyer Rick Esenberg, who represents plaintiffs he says are concerned about drop box use, said he believes Wisconsin Election Commission guidelines need clarification.

"The guidelines taken as a whole did two things. First of all, they provided for the use of drop boxes, which, I think it's fair to say, reading the memos, have to be locked in some way. But after that, there's a lot of different options. They should be staffed, they should be monitored, but they don't really have to be. That certainly is a departure from either mailing a ballot in or delivering it in person to the clerk," Esenberg told the court, during a webcast carried by WisconsinEye.

But Charles Curtis, a lawyer for the Democratic Senatorial Campaign Committee, argued there are extensive state guidelines for use of drop boxes.

"There are a number of limitations on what the clerk can do. The plaintiffs for example, talked about, 'If my argument is right, you could have a shoebox on a park bench,' and that's wrong," Curtis said.

The Waukesha court ruling also appears to limit people with disabilities and others who need assistance from getting help even mailing an absentee ballot.

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Wisconsin Supreme Court Justice Jill Karofsky asks a question during Wednesday's hearing.

In a contentious exchange, Esenberg, who contends only elector (voters) can mail a ballot, was quizzed by liberal Justice Jill Karofsky.

Karofsky asked: "What if I take my envelope, and I seal it, and I put the stamp on it, and put my return address on it, and I am standing at the mailbox and I hand it to my son to go the arms length from where I am standing into the mailbox. Has that been mailed by the elector?"

Esenberg replied: "Within the meaning of the statute no because you've given the ballot to somebody else."

Karofsky: "I know you can appreciate how absurd that result is."

Esenberg: "No, it's not absurd."

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Milwaukee resident Martha Chambers speaks during a news conference following the state Supreme Court hearing.

After the Supreme Court session, Disability Rights Wisconsin and other groups held a news conference. Milwaukee resident Martha Chambers was injured in a horseback riding accident 27 years ago and is paralyzed from the neck down. She watched the hearing and challenged claims that everyone can find ways to submit their election ballot.

"Do they not know that people have spinal cord injuries, or MS? I couldn't believe it. I was just speechless. And it also made me very angry," Chambers told reporters.

An attorney from the progressive legal group Law Forward said if the state Supreme Court rules against assistance in returning absentee ballots, people with disabilities will be filing federal lawsuits to protect their voting rights.

Chuck Quirmbach joined WUWM in August 2018. He focuses his longform stories on health, innovation, science, technology, transportation, utilities and business.
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