The Wisconsin Supreme Court heard oral arguments Monday on a case that could decide whether Wisconsin clerks could reinstate absentee ballot drop boxes after the court previously ruled against it.
The court, which has a liberal majority, seemed in favor of overturning a previous decision that said ballot drop boxes were not allowed to be placed outside a county clerk’s office. The 2022 ruling was decided when the court had a 4-3 conservative majority, which has since flipped.
Ballot drop boxes were an especially notable point of contention during the 2020 election in Wisconsin. “What if we just got it wrong?” Democratic Justice Jill Karofsky asked, referring to the court’s prior decision. “What if we made a mistake? Are we now supposed to just perpetuate that mistake into the future?”
Ballot drop boxes were used far before the 2020 election, popping up across the state in the 1980s and 1990s, according to the Milwaukee Journal Sentinel. Their popularity grew in 2020, however, due to the COVID-19 pandemic.
During the arguments, the court’s liberal justices questioned the 2022 decision to ban the boxes. The 2022 ruling said the boxes were illegal because they were not directly accounted for in any Wisconsin law.
Some of the arguments Monday focused on the Wisconsin legislature’s past statements of support for the boxes’ use. However, the conservative justices questioned why legislators’ decisions mattered to the court.
“We’ve had parties change their positions very recently in this court, and other people haven’t been troubled by that — why does it matter that the legislature takes a different view of the statute for us to read the statute faithfully?” conservative Justice Brian Hagedorn asked.
Conservative Justice Rebecca Bradley argued that the plaintiffs’ argument centered on the high court becoming lawmakers.
“You are asking this court to become a superlegislature and give free rein, despite what the statutes say, give free rein to municipal clerks to conduct elections however they see fit,” Bradley said. “That, counsel, seems to me to be the greater danger to democracy because you’re asking this court to override what the legislature wrote.”
Still, the court appeared keen on overturning the 2022 ruling to reinstate the drop boxes.
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“Just to be clear, there’s nothing in the statutes that says that drop boxes are unauthorized or illegal,” Karofsky said.
The decision will come ahead of the 2024 general election, in which Wisconsin is one of several crucial swing states. In 2020, Biden flipped the state back blue, beating former President Donald Trump by about 20,000 votes.
