News & Politics

Wisconsin Judge Rules Ballot Drop Boxes Used in 2020 Election Were Illegal

AP Photo/Wong Maye-E

A judge in the state of Wisconsin ruled on Thursday that the use of ballot boxes in the 2020 election was, in fact, illegal. Joe Biden was declared the winner over Donald Trump in the state by 20,682 votes.

Waukesha County Circuit Court Judge Michael Bohren issued the decision in a lawsuit that had been filed on behalf of two voters by the Wisconsin Institute of Law & Liberty (WILL). WILL argued that the Wisconsin Elections Commission (WEC) had unilaterally issued guidance to election clerks, authorizing the use of ballot collection boxes, in contradiction of state law.

“The guidance from the Wisconsin Elections Commission on absentee ballot drop boxes was unlawful. There are just two legal methods to cast an absentee ballot in Wisconsin: through the mail or in-person at a clerk’s office. And voters must return their own ballots,” commented WILL Deputy Counsel Luke Berg. “We are pleased the court made this clear, providing Wisconsin voters with certainty for forthcoming elections.”

In a memo issued to state election officials months before the 2020 general election, the WEC gave its blessing to install an unlimited number of drop boxes of numerous descriptions: indoors or outdoors, staffed or unstaffed, in a box or with a fox. Officials could even use COVID-19 as an excuse to repurpose existing local “infrastructure” for ballot collection, such as mail slots set up for taxes, mail and public utilities, book and media drop slots at the local library, even “businesses or locations that have already implemented social distancing practices, such as grocery stores and banks.”

During arguments, Berg noted that, because these recommendations were made outside the rule making process they should have gone through, there were no real legal standards regulating what could qualify as a drop box. “A shoebox on a bench in a park would be legal for collecting ballots,” argued Berg. “Now, that’s absurd, of course. But that’s the logical consequence of the position that the commission is taking.”

Judge Bohren agreed, saying that the WEC guidance constituted a “major policy decision that alter(s) how our absentee ballot process operates” and, as such, required approval from the state legislature. Bohren gave the commission until Jan. 27 to rescind the unlawful guidance.

In Dec. 2021, WILL published a detailed, thoroughly researched review of the 2020 election (available as a PDF on their website here). In the section devoted to drop boxes, the report notes that not only did the WEC not have authority to create a new way of voting, but also that drop boxes had a partisan effect on turnout:

Overall, drop boxes appear to have increased voter turnout by approximately 48 votes per community relative to similar communities that did not have drop boxes. It seems that most of this turnout benefit went largely to President Biden — the presence of drop boxes increased turnout for Biden by about 48 votes, with no statistically significant effect on support for President Trump. … Projecting over the number of communities that had drop boxes yields an estimated 20,736 additional votes for Biden as a result of the boxes.

Thursday’s ruling means that Wisconsin ballots that were dropped into the boxes were cast illegally, but that doesn’t necessarily mean they were fraudulent votes. But the report notes that there is no way to be sure that drop box ballots were — or weren’t — legitimate.

Drop boxes were largely unmonitored. WILL made open record requests for the “chain of custody” logs for the 50 sample municipalities as part of our election practices audit. Out of the 24 communities in the sample that reported having drop boxes, only 10 reported using chain of custody logs to track absentee ballot pickups.

Even worse, of the municipalities that did trouble themselves to maintain logs for the ballot drops, only one recorded the actual number of ballots that were collected. “This is a serious deficiency,” notes the report, “as matching votes totals to votes cast is an important part of verifying electoral outcomes. Unless the number of votes in a drop box is fixed, it will always be possible for ballots to be added or removed.”

By an odd coincidence, Wisconsin is one of a handful of swing states where “midnight magic” occurred on election night. These were the states where, at some point in the wee hours, massive vote dumps produced huge jumps in Biden’s, and only Biden’s, vote tallies.

The Healthy Elections Project reports that, during the 2020 election, “only eight states explicitly permit[ed] or require[d] ballot drop boxes by statute or regulatory guidance,” but that drop boxes were nonetheless available to voters in at least 19 states. In other words, under the umbrella excuse of COVID!, at least 11 states used drop boxes without legislative authorization to do so. As the WILL report shows, there is seldom a clean chain of custody and even more seldom an accurate count of the number of ballots collected from these ad hoc receptacles. The opportunity to dump thousands of ballots into the boxes in each state cannot be discounted.

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The boxes also facilitate ballot harvesting, which is also illegal in many of these states. Judge Bohren’s ruling on Thursday confirmed that ballot harvesting is illegal under Wisconsin state law, as well.

A WEC spokesperson said the commission will proceed to review the ruling. The commission could appeal the circuit court’s decision before the Jan. 27 deadline. It can only be a good thing to get the legality of ad-hoc, unregulated voting options sorted out in as many states as possible before the 2022 midterm elections.