Zac Schultz on Another Legal Battle Over Ballot Drop Boxes

Frederica Freyberg:
We start tonight with the question of whether the widespread use of absentee ballot drop boxes will be coming back for the November election. This week, Wisconsin’s liberal majority Supreme Court decided to consider an appeal to the court’s ruling of less than two years ago that the drop boxes are illegal and that ballots must be personally delivered to the municipal clerk. The court’s conservative dissent harshly condemned the new order calling it, “another shameless effort by the majority to readjust the balance of political power in Wisconsin.” Approved by the state elections commission for use in 2020 during the COVID pandemic, more than 500 absentee ballot drop boxes across Wisconsin allowed contactless voting, but when Donald Trump lost the election, his blame included the boxes, casting doubt on the results. In 2022, the then-conservative majority Wisconsin high court ruled they were illegal for future elections. Fast forward to today and they’re up for consideration again. “Here & Now” senior political reporter Zac Schultz is here with more. Hi, Zac.

Zac Schultz:
Hello, Fred.

Frederica Freyberg:
So how unusual is it for a court to reach back to decided law and consider an appeal?

Zac Schultz:
Well, it doesn’t happen very often, but there are some high-profile examples. On a national scale, Dobbs overturning Roe v. Wade just a couple of years ago is obviously a pretty big one that has political ramifications, but there’s actually precedent here for that in Wisconsin. Back in 2016, the conservative Supreme Court ruled that the Legislature had oversight over the Department of Public Instruction and the state superintendent. They did not have oversight. Flash forward just a couple of years later and the makeup of that court changed when Justice Kelly joined the court, he ruled that they did have oversight. So they overturned an example. When I asked him why, he said that was because that original decision was fractured. It wasn’t a solid majority that made it up. It was concurring opinions. And the reason that’s important in this example, Frederica, is because the Teigen decision from July of ’22 was also a very fractured majority opinion. In that case, Justice Brian Hagedorn joined the majority for only about half of the actual majority opinion. He concurred with only 30 of 87 paragraphs in the entire decision. There were multiple concurrences and so the only thing that stands out of that original decision is that drop boxes are not valid in state law because they are not allowed, and they are not specifically allowed but they’re also not not allowed, and that’s what this decision is going to take a look at again.

Frederica Freyberg:
So I can see through your explanation how this is potentially ripe for that appeal, but the conservative dissent to this order says that by granting it, “the majority aims to increase the electoral prospects of its preferred political party.” Is it proven that ballot drop boxes helped Democrats?

Zac Schultz:
Well, certainly in 2020, more Democrats took advantage of drop boxes and absentee voting than Republicans did. Historically, that’s not always the case. Different states vote largely by mail. Donald Trump himself voted absentee in Florida in prior presidential elections, but it was Trump who made the case against absentee voting in 2020 in the lead-up to that election that convinced a lot of Republicans not to trust that process and then it was Trump after the election that made it part of his conspiracy theories about fraud in the electorate that turned Republicans against it. But importantly, Republicans, including the Republican Party of Wisconsin, is trying to shift back to absentee balloting for this election. They’ve made that a big part of their platform because they understand it’s extremely important in trying to win elections.

Frederica Freyberg:
So if the conservative minority on the Wisconsin’s high court thinks that it’s a political kind of decision on the part of the liberal majority, wouldn’t outlawing these boxes mean the former conservative majority was aiming to increase the electoral prospects of its preferred political party?

Zac Schultz:
Well, certainly the decision fell in line with what the standard bearer at that time, former president Trump wanted, and what the MAGA opinion throughout most of the country was, is that drop boxes are ripe for fraud. That certainly hasn’t been proven in most cases. It certainly wasn’t proven in Wisconsin. There’s arguments that places in rural Wisconsin would benefit just as much from drop boxes because clerks aren’t always present for someone to come in and vote absentee in-person early and then a drop box would be a nice easy way for someone to drop off a ballot. Rural Wisconsin being slightly more conservative than urban Wisconsin.

Frederica Freyberg:
Right. What about the issue of sowing chaos in November for election officials having to give guidance to clerks? How likely is it that this would continue to be litigated?

Zac Schultz:
Well, it’s unlikely in the sense that — the Supreme Court is fast-tracking this. They want oral arguments by May, likely a decision by June, so there will be plenty of time before we get to the August primary and November before a decision would have to come up in that case, so the decision would be in place. It’s unlikely it could be appealed to the United States Supreme Court so that decision would be final, but there’s always lawsuits in the last couple months before an election.

Frederica Freyberg:
How surprising is it that it’s fast-tracked in this way? I mean, I get it that they’re up against the November election, but this Supreme Court seems to be making some moves differently than the last court.

Zac Schultz:
That’s right. With the liberal majority took over, they changed some of the administrative process to make sure that things could go along smoothly and quickly in a lot of these expedited cases. In part, that’s because traditionally the chief justice of the Supreme Court has a lot of power over how fast decisions move along and that Supreme Court chief justice is a conservative. So the liberals have created a new process to make things faster. In this case, expediting this case so that they can have a decision before the end of this term, which will affect the fall election.

Frederica Freyberg:
Zac Schultz, thanks very much.

Zac Schultz:
Thank you.

Frederica Freyberg:
As to absentee ballots, in its final session day the state Senate declined to take up the bill allowing clerks get a head start on counting them the day before Election Day.
The Senate majority also rejected eight more of Governor Tony Evers’ nominees for appointment to boards and commissions, including two on the UW Board of Regents.