Teigen v. Wisconsin Elections Commission

Wisconsin allows voters to cast an absentee ballot without an excuse. State law allows election officials to provide alternative locations to return absentee ballots along with the office of the municipal clerk or board of election commissioners. Under Wisconsin statute 6855, these alternative sites are required to be “staffed by the municipal clerk or the executive director of the board of election commissioners, or employees of the clerk or the board of election commissioners.” And Wisconsin statute 6.87(4)(b)(1) requires absentee ballots to be, “mailed by the elector [to the municipal clerk], or delivered in person, to the municipal clerk issuing the ballot or ballots.”

In March and August of 2020, prior to the November election, the Wisconsin Elections Commission (“commission”) sent two memos containing guidance on absentee ballots to local election officials in Wisconsin. The March 2020 memo stated that family members or other persons could return absentee ballots on behalf of voters. The August 2020 memo provided guidance on the types of drop boxes election officials could provide, including unstaffed, 24-hour drop boxes monitored via video surveillance.

On June 28, 2021, two individuals filed a lawsuit in the Waukesha County circuit court, arguing the two memos were illegal and that Wisconsin law forbade persons other than voters from returning absentee ballots and using drop boxes to return absentee ballots. As a remedy, the plaintiffs requested a court order stating (1) absentee ballots could only be returned via mail or personal delivery by the voter to the municipal clerk’s office or approved alternate site and (2) that ‘delivered in person’ means the voter physically handing it to the municipal clerk or an authorized representative as designated under state law.

The League of Women Voters of Wisconsin (LWV of Wisconsin), together with Disability Rights Wisconsin, and Wisconsin Faith Voices for Justice, moved to intervene on August 13, 2021. The League and its partners argued that granting the plaintiffs’ requests would directly impair the ability of Wisconsin voters to vote, particularly those with disabilities and historically low voter turnout. On October 15, 2021, the court granted the League’s motion to intervene.

On January 19, 2022, the court granted the plaintiffs’ motion for summary judgment and issued a permanent injunction including their requested court order. This ruling was stayed by the Wisconsin court of appeals. In response, the plaintiffs sought review by the Wisconsin supreme court.

In its opening brief, LWV of Wisconsin and partners argued the trial court’s ruling was erroneous in several ways. First, the plaintiffs had failed to exhaust all administrative remedies, meaning they should not have been allowed to file a lawsuit before doing so. Second, the League argued Wisconsin statute 6.874(4)(b) should be read to allow assistance in returning absentee ballots under previous Wisconsin supreme court precedent, the wording of the statute, and the fact that Wisconsin allowed assistance with returning absentee ballots in several other laws. Third, the League argued the circuit court’s ruling could conflict with several federal laws protecting voters with disabilities, including the Americans with Disabilities Act. Fourth, the wording of the statute did not explicitly ban ballot drop boxes and did not explicitly specify that the term ‘municipal clerk’ meant the actual person in that role. Finally, the League’s brief argued that, because the guidance issued by the commission was, under previous precedent, non-binding and not mandatory, it was not required to go through the regular rule making process.

The Wisconsin supreme court upheld the trial court’s order on July 8, 2022. The court’s opinion stated that, because ballot boxes were not mentioned or explicitly authorized in the text of the statutes governing absentee ballot return, municipal clerks were not allowed to offer them. The court’s opinion also stated that the term 'in person,' for the purposes of returning absentee ballots, meant voters had to return their own ballots in person. The court concluded by stating only the legislature could authorize the use of ballot drop boxes beyond the provisions of Wisconsin statute 6855.

LWV Wisconsin was represented by Law Forward, Inc., and Stafford Rosenbaum LLP.