An appeals court has reinstated absentee ballot drop boxes for the Feb. 15 Wisconsin primary election

MADISON – An appeals court blocked a lower-court order Monday and ruled absentee ballot drop boxes can be used in the Feb. 15 primary.

The District 4 Court of Appeals issued its unanimous order a day before election clerks were scheduled to send voters absentee ballots in the race for Milwaukee mayor and other local contests in Wisconsin.

Monday's decision affects only the Feb. 15 primary. The appeals court will decide later what rules will be in place for elections after that.

The case, which could eventually get to the state Supreme Court, is being closely watched because it will determine how voters can return ballots in the fall election for U.S. Senate and governor, as well as the 2024 election for president.

The appeals court order stayed a decision that was issued this month by Waukesha County Circuit Judge Michael Bohren. The appeals judges wrote that they were acting in part because they did not want voters to be confused by rules that changed so close to election day.

"Given this situation, the risk of confusion — and possible disenfranchisement — is compelling," the judges wrote in their decision. 

The ruling was issued by appeals Judges Brian Blanchard, Rachel Graham and Jennifer Nashold. 

The use of drop boxes expanded greatly in 2020, as Wisconsinites turned to absentee voting in unprecedented numbers because of the coronavirus pandemic. Republicans who led the state Legislature at the time embraced drop boxes but later came to question their use. 

State law does not explicitly mention ballot drop boxes. Two suburban Milwaukee men sued over their use last year with the assistance of the conservative Wisconsin Institute for Law & Liberty.

Bohren this month ruled ballot drop boxes could not be used in Wisconsin because state law says absentee ballots must be returned by mail or in person. His ruling also stated voters cannot have someone else return their ballot for them. 

That would mean political groups could not pick up absentee ballots for voters but also that people could not deliver ballots for ill family members and neighbors.

Democratic Attorney General Josh Kaul, Disability Rights Wisconsin and others last week asked Bohren to suspend his ruling for the February primary because it is being held so soon. On Friday, he declined to do that. 

Kaul and the others then turned to the appeals court, which agreed with them in Monday's ruling. The appeals judges noted that some absentee ballots have already been sent to voters with instructions that say drop boxes can be used. 

Kaul praised the ruling.

"Today’s ruling will stop new barriers to voting from being imposed, and almost certainly prevent some Wisconsinites from being disenfranchised, in the upcoming February elections," he said in a written statement.

Luke Berg, an attorney with the Wisconsin Institute for Law & Liberty, did not say if he would seek to immediately reverse the appeals court's decision.

"We are confident that the circuit court’s ruling will ultimately be upheld and will evaluate our options," he said in a written statement.

The state's bipartisan Elections Commission was to meet late Monday to implement the lower court's ruling. The commission canceled its meeting after the appeals court ruled that drop boxes could be used for the Feb. 15 primary.

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.