Electoral Commission blocks Dropboxes as litigation progresses

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The Wisconsin Electoral Commission was unable to reach a consensus on how to deal with absentee ballot boxes as the issue progresses through the court system, with the Wisconsin Supreme Court considering whether to accept a case that would decide the matter .

The issue of drop boxes has become a political controversy in Wisconsin, with Republicans saying the method — used in Wisconsin for years — is vulnerable to fraud.

In 2020, the WEC issued guidance for local employees on how to manage mailboxes as absentee voting rose in popularity during the COVID-19 pandemic.

The right-wing law firm, the Wisconsin Institute for Law & Liberty (WILL), and Republicans who control the Joint Committee for Review of Administrative Rules have tried to change or repeal these guidelines

Earlier this month, in a lawsuit filed by WILL on behalf of two Waukesha County voters, a Waukesha County Circuit Court judge ruled that state law does not allow dropboxes and prohibited their use. An appeals court granted an immediate stay of that judge’s sentence ahead of the February primary. WILL then asked the Supreme Court to take up the case and settle the matter.

Meanwhile, JCRAR urged the WEC to withdraw its Drop Box guidance or create a set of emergency rules that would govern employee use. The WEC is already in the process of creating permanent rules for the use of guidance after a report from the Legislative Audit Bureau recommended codifying the voting methodology.

On Friday, the WEC met to address these competing issues, but in a series of 3-3 votes, the commission was unable to find a solution on how to deal with its current drop box policy.

The three Republican and three Democratic appointments to the commission could not agree on whether to withdraw the guidance and proceed with the emergency rules procedure or keep the guidance.

The Republican-appointed commissioners wanted to withdraw the guidelines to comply with JCRAR’s order and the court’s decision that the guidelines violated the law.

“We don’t need drop boxes,” said Republican-appointed Commissioner Bob Spindell. “We’ve never had these before and there was nothing in the statutes to suggest we could and I think the position or the idea that anything that’s not in the statutes then has to be fine for that , just isn’t the way that things are set up. And I think the best way to deal with this until these things are resolved, and it should be resolved fairly quickly, is to retract our committee-requested guidance, because we had no right whatsoever to put it there.

Democratic officials countered, saying the current guidance is helpful for local employees who administer elections and that if withdrawn they would have nowhere to turn when trying to run next month’s elections.

“I think that’s a terrible idea,” said Democrat-appointed Commissioner Ann Jacobs. “I have no interest in withdrawing our Dropbox guidance. I think Dropboxes are safe, effective, and an important benefit to our constituency. I believe the notion that the drop boxes installed are unlawful is utterly wrong and disagree with the district court’s very limited analysis. I have no interest in withdrawing our guidance because I think our guidance is really helpful.”

Democratic officials also expressed concern that when the guidance no longer exists, the issue pending in the court system will be moot, and the Supreme Court will be unable to provide a definitive answer to the question, which commissioners all agree on .

“Currently, the Supreme Court is considering our guidance in connection with a lawsuit to interpret the law and whether that guidance is guidance or administrative regulation,” said Democratic Party-appointed Mark Thomsen. “I think we as an agency would want to know from the Supreme Court if our guidance is like that [the Wisconsin Department of Justice] says is in compliance with the law and whether it is a guide or a rule. We really need a legal decision that tells us how to proceed and what the law is. The risk of withdrawing the guidance is that the matter is currently before the Supreme Court. And because the court could just say the instructions are gone, the issue is moot and then we’re back to square one.”

The commission was able to make a decision on another issue Republicans have highlighted in launching baseless attacks on the state’s electoral system — correcting witness and voter addresses on returned ballot envelopes.

When returning a postal ballot, the voter and a witness must sign the envelope and provide their addresses. The WEC guidelines, in effect since 2016 and introduced with Republican support, allow municipality officials to correct those addresses if a municipality name or zip code is omitted, or even if the address is missing entirely and the clerk knows where the person lives.

JCRAR asked the commission to create an emergency rule or withdraw its guidance on address collection. In a unanimous vote, the commission agreed to initiate the emergency rulemaking process. The Commission is already in the process of creating a permanent regulation on this subject.

The commission is scheduled to meet Monday to approve a draft of the address correction rule and then send that draft to Gov. Tony Evers and the Administration Department.

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