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Appeals court reinstates drop boxes for Wisconsin's February primary

Election officials count absentee ballots on Nov, 3, 2020, in Beloit, Wis.
Scott Olson
Getty Images
Election officials count absentee ballots on Nov, 3, 2020, in Beloit, Wis.

A Wisconsin appeals court has temporarily blocked a judge's order that would have banned the use of absentee ballot drop boxes in the swing state.

The court issued its decision Monday afternoon. Assuming it stands, it would mean drop boxes can continue to be used for Wisconsin's Feb. 15 primary.

Waukesha County Circuit Court Judge Michael Bohren sided with the conservative Wisconsin Institute for Law and Liberty earlier this month, ruling nothing in state law allows for absentee ballot drop boxes.

Bohren initially ordered the Wisconsin Elections Commission to rescind its guidance to clerks on how to use the drop boxes by Thursday, saying the WEC had exceeded its authority when it issued the recommendations. At a follow-up hearing last week, Bohren accelerated that deadline, moving it up to Monday.

A coalition of groups — including Disability Rights Wisconsin, the League of Women Voters of Wisconsin and Wisconsin Faith Voices for Justice — appealed, arguing in part that the ruling had "created a mess" because it was handed down too close to Wisconsin's Feb. 15 spring primary. The U.S. Supreme Court has historically discouraged lower courts from changing the rules for voting too close to an election.

"Huge numbers of Wisconsin voters, and a significant number of Wisconsin election officials, have never participated in a Wisconsin election administered under the rules Respondents convinced the circuit court to impose," read an appeal by the groups. "To implement those rules days before an election is indeed to change how elections function in Wisconsin."

In its Monday ruling, the appeals court agreed, writing there may be voters who had already deposited their absentee ballots in drop boxes.

"The potential for voter confusion and uncertainty in administration is apparent in this situation," wrote the appeals court. "If the current guidance is withdrawn at this stage of the election process, there is significant uncertainty as to whether these votes would be counted."

The court issued its order as a temporary stay, meaning it would only overturn the lower court's ruling until Feb. 15. The order could still be permanently overturned in a separate appeal, but the Wisconsin Supreme Court will have the final say in the case.

Shortly after the order was released, the Wisconsin Elections Commission canceled a meeting scheduled for 4 p.m. Monday to discuss drop boxes.

Copyright 2022 Wisconsin Public Radio

Shawn Johnson covers the State Capitol for Wisconsin Public Radio. Shawn joined the network in 2004. Prior to that he worked for WUIS-FM, a public radio station in Springfield, Illinois. There, Shawn reported on the Illinois legislature. He also managed the station's western Illinois bureau, where he produced features on issues facing rural residents. He previously worked as an Assistant Producer for WBBM-AM radio in Chicago.