Four Years Later: Were Those Wisconsin Dropboxes Legal After All?

People will be talking about shenanigans in the 2024 election for a long time. I intend not to. Somehow I volunteered to try to figure out the 2020 shenanigan allegations, and I'm not done yet, and I have no interest in doubling the work. But if you want to figure something out for this year, well, some shenanigans overlap.

Once upon a time, there was something called Teigen vs. the Wisconsin Elections Commission. It was a big deal. It showed that a large number of votes in Wisconsin were illegally counted in 2020 after being cast improperly. Well over the Biden margin of victory of 20,000 in Wisconsin--we can estimate about 37,000.

I'd been wrong about this myself. I'd thought these votes were collected foolishly in a manner encouraging fraud--but not counted illegally. Then the whole Teigen case came along, and I reconsidered, and concluded it was illegal after all. A little later, the Supreme Court of Wisconsin thought so too!

But the saga continues. Things happen when you change who's on a court. Teigen was overruled in a new case--Priorities USA vs. WEC, to give the abbreviated name.

Is the new SCOWI liberal majority wrong, or was I wrong? Let's find out.

(Spoiler alert: They're wrong!)

We'd Best Start with the Backstory

The laws of Wisconsin (chapter 6, Section 87) state concerning absentee ballot envelopes:

The envelope shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.

The laws do not provide for a bunch of outdoor dropboxes for collecting absentee ballots.

However, in 2020, Wisconsin cities did use a bunch of outdoor dropboxes.

Tens of thousands of votes were cast and collected in this unfortunate manner. About 74,000 votes in dropboxes altogether. Some of those were indoors at a city clerk’s office, and I cautiously guesstimate that about half were in outdoor dropboxes: 37,000 of them.

In addition, Madison, Wisconsin, did something called “Democracy in the Park.” Like the outdoor dropboxes, it also had some functions of an election happening outside the clerk’s office.

That affects about 17,000 more votes in Wisconsin.

If these votes were illegally counted, that's a very big deal: The Biden margin of victory in Wisconsin was only about 20,000.

An Argument That the Votes Were Legally Counted

Here's what I thought at first (in an earlier post, from 2021): These votes were cast in accordance with the rules and legally counted. I followed a simple argument:

1. If putting a ballot in a dropbox is a way of handing it over to the clerk, then this was legally OK. 2. Putting a ballot in a dropbox was a way of handing it over to the clerk. 3. So this was legally OK.

The first premise of this argument is guaranteed by Chapter 6 of the laws of Wisconsin. The second premise seemed true to me since the dropboxes were under the control of the city clerks.

This way of thinking depends on looking chapter 6, Section 87 by itself.

A Better Argument That It Was Illegal

Another argument persuaded me that this was illegal after all. (See my other post, from 2022.)

Chapter 6, Section 855, of the laws of Wisconsin gives some rules for voting at an alternate site, and inspired this new argument:

1. If these dropboxes were alternate sites under Section 855, then these votes were not collected in a manner consistent with the law. 2. They were alternate sites under Section 855. 3. So these votes were not collected in a manner consistent with the law.

Premise 1 is not controversial; the rules in Section 855 were not followed in this case.

Premise 2 is where the action is: Are all these dang dropboxes alternate sites under 855, or aren't they?

I sure thought so. They're literally alternate sites. That's what the words mean--voting using a dropbox instead of the clerk's office is voting using an alternate site. And it looks like they fall under the jurisdiction of Section 855; here's the argument that really persuaded me:

1. If Section 855 does not apply to all locations outside the clerk’s office where some functions of an election are performed, then various uses of alternate sites are permitted independently of 855. 2. If various uses of alternate sites are permitted independently of 855, then what 855 permits is also permitted independently of 855. 3. If what 855 permits is also permitted independently of 855, then 855’s permission accomplishes nothing. 4. If 855’s permission accomplishes nothing, then 855 is a pointless law that accomplishes nothing. 5. So if Section 855 does not apply to all locations outside the clerk’s office where some functions of an election are performed, then 855 is a pointless law that accomplishes nothing. 6. 855 is not a pointless law that accomplishes nothing. 7. So 855 applies to all locations outside the clerk’s office where some functions of an election are performed.

The Reasoning of Priorities USA

Priorities USA says 855 is not relevant:

¶29 . . . To begin, Wis. Stat. § 6.855 is of little use to the question presented. Section 6.855 allows a municipality to designate alternate absentee ballot sites where "electors of the municipality may request and vote absentee ballots and to which voted absentee ballots shall be returned by electors for any election." § 6.855(1). The Teigen majority noted that drop boxes are not alternate absentee ballot sites because ballots cannot be requested and voted at a drop box. Teigen, 403 Wis. 2d 607, ¶57. This is true. But this conclusion is ultimately of little consequence, as the statute simply does not apply to drop boxes.

¶30 "An alternative absentee ballot site . . . must be a location not only where voters may return absentee ballots, but also a location where voters 'may request and vote absentee ballots.'" Trump, 394 Wis. 2d 629, ¶56 (Hagedorn, J., concurring). On its face, this does not describe a drop box. The fact that the legislature "enacted a detailed statutory construct for alternate sites" while not doing the same for drop boxes has nothing to say about the legality of drop boxes. See Teigen, 403 Wis. 2d 607, ¶58. Indeed, the legislature would have no reason for enacting such a scheme because drop boxes are already allowed by the plain language of § 6.87(4)(b)1.

If I'm not mistaken, that's it! There is no further argument against using 855 the way I did. The reasoning here appears to be simply this:

1. 855 is not talking about dropboxes.

2. Therefore, all arguments about dropboxes that rely on 855 are bad arguments.

Priorities USA Is Wrong

The Court's thinking is wrong. Here's one way of looking at its mistake. The Court's conclusion does not follow from its premise by itself. It has an unstated If-Then premise: "If 855 is not talking about dropboxes, then all arguments about dropboxes that rely on 855 are bad arguments."

The argument fails because that premise is false.

And why is it false? Well, because of the seven-step argument I gave above. Basically, the Court just completely ignored this insight.

Another Way of Looking at the Mistake of Priorities USA

Maybe this will be simpler. Check out this bit from Priorities USA:

. . . the question then becomes whether delivery to a drop box constitutes delivery "to the municipal clerk" within the meaning of Wis. Stat. § 6.87(4)(b)1.

¶26 We conclude that it does. A drop box is set up, maintained, secured, and emptied by the municipal clerk.[10] This is the case even if the drop box is in a location other than the municipal clerk's office. As analyzed, the statute does not specify a location to which a ballot must be returned and requires only that the ballot be delivered to a location the municipal clerk, within his or her discretion, designates.

[10] Importantly, we observe that the statutory definition of "municipal clerk" includes "the city clerk, town clerk, village clerk and the executive director of the city election commission and their authorized representatives." Wis. Stat. § 5.02(10) (emphasis added). Thus, a single person need not set up, maintain, secure, and empty all drop boxes in a municipality.

You notice anything funny about that? They're saying that chapter 6, Section 87 authorizes any darn way of getting a ballot to the city clerk that the clerk darn well wants. The clerk could order that the open mouth of a stuffed lion on a pedestal be a repository for ballots delivered by really tall voters or voters on stilts.

Well, if that's true, then why does 855 exist?

Here's the gist of what seems to be going on here:

The new Wisconsin Supreme Court is determined to look at things the way I initially did, and that means considering chapter 6, Section 87 by itself. But if chapter 6, Section 87 all by itself authorizes these dropboxes, then it also authorizes what 855 authorizes, rendering 855 a pointless dead letter. The problem is that 855 exists, and is law, and means something.

That means that chapter 6, Section 87 really does not authorize those dropboxes.

And that means that a whole lot of votes really were counted illegally in Wisconsin in 2020. Not just the ones in the dropboxes, remember: The same reasoning applies to Democracy in the Park. The number of votes shown to be illegally counted in 2020 by this reasoning could be estimated at around 54,000. (See my other post from 2022.)

The Dissent Does Well

The Priorities USA dissent by Judge Rebecca Bradley begins on page 27 of the Priorities USA PDF, and she gets to 855 on page 39 of the PDF (but page 14 of her dissent). (Try not to mix up Judge Rebecca Bradley, of the dissent, with Judge Ann Bradley, who wrote the majority opinion!)

She says:

Given this detailed statutory language, § 6.855 does not contemplate in person absentee voting at a location other than the office of the municipal clerk or an alternate site, and the explicit rules for alternate sites leave no reasonable room for in person absentee voting at any other locations.

". . . the explicit rules for alternate sites leave no reasonable room for in person absentee voting at any other locations"--precisely.

Rebecca Bradley continues:

This conclusion is reinforced by Wis. Stat. § 5.81(3), which like Wis. Stat. § 6.855(1), confirms that in person absentee voting will occur "in person in the office of the municipal clerk."

She then quotes from chapter 5, Section 81 of the laws of Wisconsin:

If a municipality utilizes an electronic voting system in which ballots distributed to electors are employed, absentee ballots may consist of ballots utilized with the system or paper ballots and envelopes voted in person in the office of the municipal clerk or voted by mail.

This is an interesting extra reason to think these dropboxes are not legal: You can use chapter 5, Section 81 (and probably other bits of law here and there) to interpret chapter 6, Section 87. Thus we learn that Chapter 6, Section 87 does not authorize dropboxes or alternate voting sites. It only authorizes absentee envelopes given in person at the clerk's office or mailed to it through the postal system. Nothing else is authorized except for the 855 alternate sites.

Rebecca Bradley rightly concludes:

The legislature's policy choices, enacted in §§ 6.855(1) and 5.81(3), prescribe only two locations where in person absentee ballots can be delivered——the office of the municipal clerk or a designated alternate site.

Which Election Are We Talking About Again?

2020. That still matters.

But when you hear about this in 2024, pay attention. This is state-sanctioned illegality, and there will be more of it in 2024.