CEC Files Amicus Brief in WI Ballot Drop Box Case

(Arlington, Va.) – The Center for Election Confidence (CEC) today filed an amicus brief in the case before the Wisconsin Supreme Court of Priorities USA v. The Wisconsin Elections Commission. CEC asks the Court to consider how Wisconsin’s neighboring states have enacted legislation authorizing ballot drop boxes along with measures to secure ballots.

The Wisconsin Legislature never enacted a law authorizing the use of ballot drop boxes, as noted by the Court in a previous ruling (Teigen v. Wisconsin Election Commission).  

“By taking up this question a second time, the Court risks the public perceiving any decision as political rather than legal, since it may unilaterally authorize drop boxes despite the Legislature deciding not to act since the Teigen decision,” said Jonathon Hauenschild, CEC Senior Counsel.

“Our brief looks at how legislatures in neighboring states have enacted laws accompanied by security measures to protect the integrity of ballots dropped in ballot boxes, which are inherently vulnerable to election mischief,” added Hauenschild. “Protecting ballots in every step of the process is critical to upholding the ethics, integrity, and professionalism of the electoral process,” Hauenschild concluded.

From the amicus brief:

Where state laws did not expressly authorize drop boxes for use during the 2020 pandemic election, state and local election officials acted to implement them through executive action or by court approval – often with doubtful legal authority. After the pandemic subsided, legislatures considered laws expressly approving the use of drop boxes and rules regulating their use.

Significantly, after this Court ruled that Wisconsin law did not permit drop box voting in Teigen, the Wisconsin Legislature, fully cognizant of the Court’s ruling, did not act to amend its statutes.

In addition to explicit statutory authorizations, whether other statutes even contemplate the use of drop boxes is instructive for courts. State statutes permitting drop boxes almost invariably provide for their security and adopt other measures designed to instill confidence in the electorate. If a legislature has contemplated the use of drop boxes, then its statutes will prescribe security and confidence measures for their use. Conversely, states that do not authorize drop boxes have no reason to adopt rules for their use.

As this Court considers whether to reverse its 2022 decision in Teigen, it should respect the policy decisions made by the Wisconsin Legislature to prescribe the time, place and manner of elections in Wisconsin and sustain Teigen.

View the CEC amicus brief here.

Center for Election Confidence is a non-profit organization with a long history of advancing the role of ethics, integrity, and legal professionalism in the electoral process, including safeguarding the right of eligible voters to vote. Until January 2024, CEC was known as Lawyers Democracy Fund. For more information, please visit www.electionconfidence.org.