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Wisconsin Elections Commission can't agree on advice for clerks following SCOWI drop box ruling

Danielle Kaeding, WPR | Published on 7/14/2022

Republicans and Democrats on the Wisconsin Elections Commission repeatedly split Tuesday over whether to provide new guidance to more than 1,800 clerks on how to handle absentee ballots after the Supreme Court ruled ballot drop boxes are illegal.

A conservative majority of the Wisconsin Supreme Court ruled Friday that ballot drop boxes won’t be allowed in Wisconsin. In the 4-3 decision, Justice Rebecca Bradley wrote that the Wisconsin Elections Commission overstepped its authority when it issued guidance to local clerks for using the drop boxes.

The court found it’s illegal for someone else besides the voter to return a completed absentee ballot, but justices didn’t address whether people who vote absentee by mail must place a ballot in a mailbox themselves or if someone else could do it. The court’s minority of liberal-leaning justices said the decision would make it more difficult for people to vote as the state is weeks away from the Aug. 9 primary.

At their meeting Tuesday, commissioners took a series of 3-3 party line votes regarding what to tell clerks about how to apply the court’s decision, leaving open the possibility of providing guidance at a later date.

Republican commissioners said the commission should provide guidance to clerks to help them understand the ruling, but Democrats argued it’s unclear what the commission can tell them now without creating confusion or inviting legal challenges.

Republican Commissioner Bob Spindell proposed a motion to require voter ID from a person returning a ballot to a clerk’s office. He called it a “security measure” to comply with the court’s decision that only the voter can return a completed ballot.

“It's inherent in something like this that we have the person who is actually doing that to show an ID to show in fact it is his or her (ballot),” said Spindell. “Otherwise, you have the problem of it could be anyone's.”

Democratic commissioners rejected that motion. Commissioner Ann Jacobs said they have no authority to order people to show ID, and Commissioner Mark Thomsen said the court’s ruling made clear the Wisconsin Elections Commission doesn’t have the power to “make up new stuff.”

“We don't have the power to do it, and that's what this Court said to us pretty clearly,” said Thomsen.

The commission was also divided on another motion from Spindell that would have instructed clerks that an envelope containing an absentee ballot should be mailed by the voter. Democratic Commissioner Julie Glancey questioned how clerks would have any control over that. Thomsen said that guidance would do nothing other than invite an unnecessary lawsuit and meddle with the court’s decision.

Democrats and Republicans also deadlocked on the commission’s draft guidance summarizing the Wisconsin Supreme Court's drop box decision, which Thomsen claimed would confuse clerks more than it would help them understand the ruling.

The commission’s new Republican Chair Don Millis noted there have been calls to eliminate the commission, saying it doesn’t do the public any good to avoid issues. Former Supreme Court Justice Michael Gableman has called on lawmakers to dismantle the commission as part of a Republican-led investigation into the 2020 election.

“Clerks look to the commission, and it seems to me we're abrogating our role if we don't provide guidance,” said Millis. “This is not a game.”

Millis noted clerks in small communities don’t have the resources to evaluate what the court’s decision means and how to apply it before the next election.

Democrats argued clerks know how to run elections and managed to carry out the April election without guidance from the commission.

The legal back-and-forth over drop boxes began earlier this year when Waukesha County Circuit Court Judge Michael Bohren ruled in January that drop boxes weren’t allowed under state law. The judge sided with the conservative Wisconsin Institute for Law and Liberty, which had challenged the legality of drop boxes on behalf of two voters. WILL argued drop boxes weren’t specifically authorized under state law and stressed only voters can return ballots to their local clerk or via mail.

The commission and a coalition of groups that included disability rights advocates fought that decision, which was upheld Friday by the state Supreme Court after a series of lower court rulings. The head of Disability Rights Wisconsin’s office had urged the commission to provide clear guidelines to clerks to allow enough time for voters with disabilities to plan, according to the Milwaukee Journal Sentinel.

More than 500 drop boxes were in use across 430 communities during the 2020 presidential election, according to the Wisconsin Elections Commission. Many people sought ways to avoid voting in person that year to minimize their exposure to COVID-19. Around 2 million people voted absentee during the November 2020 election.

Republicans applauded the court’s recent ruling as step toward ensuring the integrity of elections, including Assembly Speaker Robin Vos. Former President Donald Trump has repeatedly claimed without evidence that he won the election in Wisconsin despite a partial recount, nonpartisan audit, and multiple court rulings that say otherwise.

Vos announced in June last year that Gableman would lead an investigation into the 2020 election after facing intense criticism from Trump. President Joe Biden won Wisconsin by about 21,000 votes in 2020, which is a similar margin by which Trump carried the state in 2016.