The Wisconsin Supreme Court on Friday held that state election officials’ use of some 500-plus drop boxes during the 2020 general election violated Wisconsin law.
While the court’s decision represents a (partial, as we will soon see) victory for election integrity, the split 4-3 decision and the substance of the dissent reveal that having a fair electoral process no longer “transcends any individual partisan interest” — something less than two decades ago Jimmy Carter touted as a universal truth in the bipartisan Commission on Election Reform report “Building Confidence in U.S. Elections.”
In Teigen v. Wisconsin Elections Commission, the court declared that the Wisconsin Elections Commission, or “WEC,” had illegally authorized election officials to use ballot drop boxes. The high court further held the WEC exceeded its statutory authority when it declared that voters could hand off their ballots to third parties rather than personally deliver their own ballots to election officials. The WEC had authorized ballot drop boxes and third-party ballot delivery in two documents issued in 2020, one in the spring before the primary election and the second before the November 2020 general election.
In the first memo, the WEC stated, “[Ballot] drop boxes can be used for voters to return ballots but clerks should ensure they are secure, can be monitored for security purposes, and should be regularly emptied.” That memo also noted that “[a] family member or another person may … return the [absentee] ballot on behalf of a voter.”
Several months later, in the summer of 2020, the WEC issued a second document that encouraged “creative solutions” to allow for the use of ballot drop boxes. The second memo expressly provided that municipal clerks could allow drop boxes to remain “unstaffed,” and indicated that “[a]t a minimum, you should have a drop box at your primary municipal building, such as the village hall.” Based on the WEC’s guidance, election officials used some 528 drop boxes during the fall 2020 election. By the spring of 2021, some 570 drop boxes dotted the midwestern state.
Two voters filed suit challenging the WEC’s guidance, arguing the rules violated the Wisconsin election code. The voters prevailed at the trial court level and the WEC appealed, with the voters asking the Wisconsin Supreme Court to take the case immediately, bypassing the intermediate appellate court. The high court agreed and heard oral arguments in April 2022 and affirmed the lower court’s decision in favor of the voters on Friday.
The Wisconsin Supreme Court’s opinion methodically marched through the various legal issues, beginning with the question of whether the voters had standing to sue to challenge the WEC’s guidance. The court in Teigen concluded that the plaintiffs had standing to sue because they sufficiently alleged they had “suffered an injury in fact to their right to vote.”
In reaching this conclusion, the high court highlighted several points that large swaths of the country appear to have forgotten, writing: “Voters are entitled to have the elections in which they participate administered properly under the law.” It added that “allowing WEC to administer the 2022 elections in a manner other than that required by law causes doubts about the fairness of the elections and erodes voter confidence in the electoral process.”
Likewise, the court stressed, “Elections are one of the most important features of our Republic, and upholding the rules and procedures prescribed for elections, according to the laws enacted by the Legislature, reinforces the sanctity of the rule of law and reassures all Americans of the integrity of our elections.”
“If the right to vote is to have any meaning at all, elections must be conducted according to law,” the Wisconsin high court continued. In fact, “the right to vote presupposes the rule of law governs elections,” and “if elections are conducted outside of the law, the people have not conferred their consent on the government. Such elections are unlawful and their results are illegitimate.” And because “the Wisconsin voters, and all lawful voters, are injured when the institution charged with administering Wisconsin elections does not follow the law, leaving the results in question,” the Supreme Court concluded the voters had suffered an injury.
The injury exists, moreover, the court explained, whether the illegal votes were cast in equal number for Trump or Biden, as “[e]lectoral outcomes obtained by unlawful procedures corrupt the institution of voting, degrading the very foundation of free government. Unlawful votes do not dilute lawful votes so much as they pollute them, which in turn pollutes the integrity of the results.”
After concluding the voters had standing to challenge the WEC’s guidance, the Wisconsin Supreme Court analyzed the relevant portions of the election code. Section 6.87(4)(b)1 provided that absentee ballots “shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots. The Teigen court noted that “the prepositional phrase ‘to the municipal clerk’ is key and must be given effect,” and that placing a ballot in a drop box is not delivering the ballot to a clerk, as a clerk is a person, and a drop box is an inanimate object.
The court also concluded that Section 6.855 of the election code confirmed the illegality of ballot drop boxes. That section establishes requirements for “alternative absentee ballot sites” — requirements that the ballot drop boxes failed to satisfy. And because the Wisconsin election code fails to otherwise authorize the use of ballot boxes, the court concluded they were illegal. The use of such illegal drop boxes, the court stressed, “weakens the people’s faith that the election produced an outcome reflective of their will.”
The Teigen court further held that because Section 6.87(4)(b)1 requires absentee ballots to “be mailed by the elector, or delivered in person,” it is illegal for “[a] family member or another person” to return the absentee ballot, as the WEC advised in the guidance it issued before the 2020 election.
In its Friday’s decision, the Wisconsin Supreme Court took two steps forward in addressing some of the significant defects in the state’s electoral system seen in the 2020 election. Declaring illegal the state-wide use of drop boxes and ruling it illegal for third parties to return the ballots of voters ensures that future elections in the battleground state will not be scarred with the same violations of election law.
The Teigen decision further advanced the important principle that it is the legislature charged with establishing the rules that govern elections, and “only the legislature may permit absentee voting via ballot drop boxes. WEC cannot.” That second point proves equally significant given the widespread disregard for the rules established by legislative bodies throughout the country in the 2020 election.
The steps forward, however, were but half-steps, as Justice Rebecca Grassl Bradley’s concurrence, which Justices Annette Kingsland Ziegler and Patience Drake Roggensack joined, showed. The three-justice concurrence authored by Grassl Bradley chastised the court for its 2020 ruling in Trump v. Biden that the WEC’s “advice” held the force of law and that “this ‘advice’ is ‘the rulebook’ for elections — nevermind what the statutes enacted by the legislature say.”
In Trump v. Biden, Trump had sought to challenge the outcome of the 2020 election based on four violations of state election law. Specifically, Trump challenged the Wisconsin election tally, claiming that “clerks improperly completed missing information on absentee ballot envelopes related to witness addresses;” “in-person absentee voters did not submit written applications for an absentee ballot;” and “voters who were not indefinitely confined claimed ‘indefinitely confined’ status for the purposes of obtaining an absentee ballot without having to show a photo identification.” Trump also challenged the collection of some 17,271 absentee ballots at events held throughout Madison called “Democracy in the Park,” in violation of Section 6.87(4)(b)1’s mandate that the ballots “be mailed by the elector, or delivered in person.”
Although the Trump campaign brought these election challenges soon after the November 2020 election, the Wisconsin Supreme Court at first refused to consider the case without proceedings below, and then on December 14, 2020, ruled that “laches” precluded Trump from litigating the violations of election law. “Laches,” as the court in Trump v. Biden wrote, “is founded on the notion that equity aids the vigilant, and not those who sleep on their rights to the detriment of the opposing party.”
Grassl Bradley, Ziegler, and Roggensack dissented from the majority’s refusal in that case to address the legal issues by hiding behind the doctrine of “laches.” In her dissent, which the other two justices joined, Grassl Bradley wrote:
“Whether election officials complied with Wisconsin law in administering the November 3, 2020 election is of fundamental importance to the voters, who should be able to rely on the advice they are given when casting their ballots. Rather than fulfilling its duty to say what the law is, a majority of this court unconstitutionally converts the Wisconsin Elections Commission’s mere advice into governing ‘law,’ thereby supplanting the actual election laws enacted by the people’s elected representatives in the legislature and defying the will of Wisconsin’s citizens. When the state’s highest court refuses to uphold the law, and stands by while an unelected body of six commissioners rewrites it, our system of representative government is subverted.”
While Friday’s decision in Teigen seemed to reclaim for the legislative branch the authority to regulate elections, the Wisconsin Supreme Court refused to overrule Trump v. Biden, leaving it controlling precedent for future elections. Grassl Bradley called out her fellow justices in a concurrence in Teigen for both the court’s original decision in Trump v. Biden and its failure to overturn that bad precedent.
And Steps Back
Grassl Bradley’s concurrence confirms that while Teigen represents a victory for election integrity, it is but a partial victory, because the WEC need only issue new and different guidance for future elections which, even if in clear violation of the Wisconsin election code, will control in an election dispute — potentially even determining the outcome of the election.
The Wisconsin Supreme Court’s refusal to overturn Trump v. Biden, however, is nowhere near as devastating to the future of election integrity as is the fact that three of the state’s high court justices don’t give a whit about the integrity of the vote.
As I wrote a few months past, “[L]ess than two decades ago Americans so universally believed that election integrity mattered that when the bipartisan Commission on Election Reform issued its 100-plus page report, ‘Building Confidence in U.S. Elections,’ the twin goals of election integrity and voting access received equal treatment. While Co-Chairs Democrat Jimmy Carter and Republican Jim Baker explained that not all members of the Commission ‘necessarily support every word or recommendation,’ all members, they stressed, ‘endorsed the judgments and general policy thrust of the report in its entirety.’”
Yet now, not even 20 years later, three justices of a state’s highest court can issue a dissent that not once gives even lip service to the goal of election integrity. Rather, the dissent blindly focuses solely on what it perceives as the only good: “increased voting.” Justice Ann Walsh Bradley’s dissent is emblematic of this distorted view of our “sacred right to vote.”
The majority opinion “erects yet another barrier for voters to exercise this ‘sacred right,’” with its holding having “the practical effect of making it more difficult to exercise it,” Walsh Bradley wrote, further claiming that the majority seeks to “make it harder to vote” “whenever it has been presented with the opportunity.”
In Walsh Bradley’s view, “a ballot drop box is a simple and perfectly legal solution to make voting easier.” Besides begging the question of the legality of a “ballot drop box,” its “simplicity” in “making voting easier,” ignores that “making voting easier” is not a societal good if it comes at the cost of secure elections the citizenry can trust. The country as a whole used to understand that, as evidenced by the Carter Commission’s report. Electoral systems must “aim both to increase voter participation and to assure the integrity of the electoral system,” the report stressed. And the formula recommended by the bipartisan committee would “result in both more integrity and more access.”
Among other issues discussed in the Carter Commission’s 100-plus page election-confidence report was the use of absentee ballots. Initially, the Carter Commission questioned whether mail-in voting would even increase access, writing, “there is no evidence that it significantly expands participation in federal elections.” However, even assuming mail-in ballots increased access, the bipartisan group warned that vote-by-mail is “likely to increase the risks of fraud,” with absentee balloting “vulnerable to abuse in several ways,” such as when “blank ballots [are] mailed to the wrong address or to large residential buildings,” as they “might get intercepted.” In fact, the committee noted that “absentee ballots remain the largest source of potential voter fraud,” pointing to a “notorious” case involving Miami’s mayoral election.
“Vote buying schemes are far more difficult to detect when citizens vote by mail,” the Carter Commission stressed, adding: “States therefore should reduce the risks of fraud and abuse in absentee voting by prohibiting ‘third-party’ organizations, candidates, and political party activists from handling absentee ballots. States also should make sure that absentee ballots received by election officials before Election Day are kept secure until they are opened and counted.” The Carter Commission likewise recommended states “do more to prevent” “absentee ballot fraud” and enact “better precautions” “to ensure that the return of ballots is not intercepted.”
The Wisconsin Legislature recognized that same reality when, after clarifying that while “voting is a constitutional right, the vigorous exercise of which should be strongly encouraged,” “voting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place.”
The state legislature, in adopting rules to govern absentee voting, further stressed “that the privilege of voting by absentee ballot must be carefully regulated to prevent the potential for fraud or abuse; to prevent overzealous solicitation of absent electors who may prefer not to participate in an election; to prevent undue influence on an absent elector to vote for or against a candidate or to cast a particular vote in a referendum; or other similar abuses.” Wisconsin lawmakers then declared that “ballots cast in contravention of the procedures specified in those provisions may not be counted,” and that “ballots counted in contravention of the procedures specified in those provisions may not be included in the certified result of any election.”
A Growing Distrust
The WEC’s approval of drop boxes not only ignored the legislatively mandated rules for absentee voting but exponentially increased the risk of voter fraud that exists when absentee ballots are returned by the U.S. Postal Service or personally delivered to an election clerk. Whereas an individual returning numerous absentee ballots to a clerk or mailing them together in one lot would raise suspicions, and be susceptible to discovery, with unmanned drop boxes, there is no similar check on the behavior. Further, drop boxes provide a perfect target for those who may wish to intercept votes, with the contents entirely consisting of ballots.
Yet three Wisconsin Supreme Court justices ignored not merely the state’s legislative mandate and the increased risk of fraud, but also discarded any concern for election integrity. The dissents in Teigen likewise ignore another fundamental that underlies free and fair elections also highlighted by the Carter Commission: the necessity that the right to vote be “privately exercised.” Allowing third parties to collect and return ballots violates the ideal of the private ballot.
Further, the expansive use of absentee voting, as the WEC illegally authorized by declaring that under Covid all citizens were “indefinitely confined” under state law, “raises concerns about privacy,” the Carter Commission stressed. “Citizens voting at home may come under pressure to vote for certain candidates,” and voting outside of polling places renders voters “more susceptible to pressure, overt and subtle, or to intimidation,” according to the Carter Commission.
The dissent in Teigen also condemned a third premise underlying the Carter Commission’s bipartisan report, further revealing the dangerous divide our country now faces. In “Building Confidence in U.S. Elections,” Democrats and Republicans both unanimously endorsed two related fundamental principles: “First, ‘elections are the heart of democracy’ and ‘if elections are defective, the entire democratic system is at risk.’ Second, and a corollary to the first: confidence in elections matters equally, and in fact ‘is central to our nation’s democracy.’”
On this second point, the commission expanded: “Democracy is endangered when people believe that their votes do not matter or are not counted correctly,” and, “Little can undermine democracy more than a widespread belief among the people that elections are neither fair nor legitimate.”
The three dissenting Supreme Court justices in Teigen, however, condemned the majority for, what it claimed was, their “blithely and erroneously seek[ing] to sow distrust in the administration of our elections…” However, as the Carter Commission made clear in its report, it is the lack of adequate safeguards that breeds distrust. And at the time the Carter Commission released its report nearly 20 years ago, a majority of Americans already held some doubts that their votes were actually counted.
The growing distrust in elections made “election reform” urgent, according to the Carter Commission. Yet, “the 2005 report reveals that every concern the commission identified as threatening the legitimacy of elections played out in November 2020,” with the decision in Teigen exposing the massive problems with absentee voting that occurred in the last presidential contest.
The Teigen decision, however, exposed a more dire problem for our country and her future: that many of the top jurists in our country care no more about election integrity than the Democrat politicians trying to sell the myth of the 2020 election as spectacularly safe and error-free.