This commentary is by Tom Evslin of Stowe, an entrepreneur, author and former Douglas administration official. It is republished from the Fractals of Change blog.
Wisconsin Statute. § 6.87(4)(b)1: “The envelope shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.” Also in the law is a provision for voting in a registered nursing home; special officials may be sent.
Do you read that sentence as authorizing unattended drop boxes into which ballots may be deposited? Neither did the Wisconsin Supreme Court. Just to close a loophole, the statutes do talk about alternative polling places (Wis. Stat. § 6.85) but make clear that these must be attended and are used instead of rather than in addition to the municipal clerk’s office.
Therefore, the court said, voting via the use of unattended drop boxes is not legal under Wisconsin law. The court did NOT say that drop boxes were a violation of either the US or Wisconsin constitution. The court did not say that properly authorized drop boxes were either a bad or good idea. It’s not up to the court to say what’s a good or bad idea. The court simply said that elections must be conducted according to the law as passed by the legislature. It did say that elections not conducted according to law lose legitimacy and erode respect for the democratic process.
Nevertheless, the ruling has been taken as a blow against open and fair elections. The New York Times says “The court adopted a literal interpretation of state law” but considers this a move to restrict voting access in urban areas. Not sure what sort of interpretation of state law the NYT would like the court to make if not a literal one; perhaps one which assures outcomes desired by the NYT? The normally more conservative Wall Street Journal also treats this as a political decision without mentioning the plain language of the law.
It might be a good idea if reporters retook that part of civics 101 which says that the courts are supposed to interpret law, not make it.
There is a reason why this decision has raised so much angst. The case came about because there were more than 500 such unattended drop boxes in use in Wisconsin during the 2020 election which Trump lost to Biden in that state. Trump’s allies claimed that these drop boxes facilitated fraud which cost him election. There is no evidence that this happened. The court did NOT rule that the 2020 election was invalid because the drop boxes were used. It said they should not be used again unless authorized by the Wisconsin legislature, which is currently unlikely. The decision does affect future elections but not those in the past.
The court is not supposed to make public policy so their job in this case is done, whether such drop boxes are desirable or not.
There is still a public policy question which needs to be decided by action or inaction of the Wisconsin legislature and the legislatures of other states. Should unattended drop boxes be allowed to make it as easy as possible to cast ballots?
I say No! Emergency measures made sense when the pandemic hit suddenly. It’s good that ballots cast in drop boxes were not thrown out in 2020. But the emergency is over. With hindsight or foresight, I can’t see why using a mailbox rather than a drop box causes a hardship to any would-be voter, especially in urban areas. I can easily see how, with two years to plan, bad actors on either side or even from abroad can think of ways to tamper with ballots in the drop boxes either to change an election result or to discredit the election itself. It’s a time of great mistrust. We cannot afford a discredited election. Mail-in ballots make it possible for more eligible people to vote; that’s good. It must also be demonstrably true beyond reasonable doubt that only legitimate ballots are counted.
Mail-in ballots should go in the US mail (postage paid, of course).