In 2022 the Wisconsin Supreme Court banned the use of ballot drop boxes like this one seen outside a Madison Fire Department station at 1217 Williamson St. The absence of drop boxes has often made elections more logistically complicated, not only for voters, but also for municipal clerks. (Matt Mencarini / Wisconsin Watch)
As the Wisconsin Supreme Court considers whether to legalize them again, clerks explain how the ban has made elections more logistically complicated for them and voters.
By Alexander Shur
Votebeat
This coverage is made possible through Votebeat, a nonpartisan news organization covering local election administration and voting access. Sign up for Votebeat’s free newsletters.
If voters in Burnside, Wisconsin, want to drop off their absentee ballots before an election, they have to go several miles outside of town, down a hilly, rural county road that requires four-wheel drive most of the year, and to the doorway or mailbox of Melissa Kono’s house.
Kono is the part-time clerk for Burnside, a 500-person town in the western part of the state. She mostly works from home since Burnside’s town hall does not have internet service.
Ideally, she said, there would be a ballot drop box at the town hall, which is conveniently located along a major highway. A drop box would also give absentee voters another alternative to mailing ballots, which can be slow in rural Wisconsin, Kono said.
But the Wisconsin Supreme Court banned the use of ballot drop boxes in 2022, ruling that state law required absentee ballots to be returned by mail or in person to the municipal clerk. In Burnside, that means getting it to Kono’s residence.
On Monday Wisconsin Supreme Court justices will hear arguments in a lawsuit alleging the court incorrectly interpreted state law in that earlier decision. Ahead of the hearing, Votebeat has found that the absence of drop boxes often made elections more logistically complicated, not only for voters, but also for municipal clerks.
“I’m not a full-time clerk. I get paid a small stipend for doing this,” Kono said. “I’m not going to sit down at the town hall all the time because I have to have a full-time other job. So I would like a drop box, just for convenience for both voters and for myself.”
The challenges can be pronounced for people living in the hundreds of Wisconsin municipalities where clerks work part-time, leaving voters with a limited time window to return a ballot in person. The state’s ban on unattended drop boxes has coincided with an increase in reports of absentee ballots showing up too late to be counted.
Outstate voters would stand to gain especially from the reintroduction of drop boxes as a way to cast an absentee ballot, said Daniel Griffith, senior policy director at Secure Democracy USA, noting that rural Wisconsin counties have just one in-person polling location every 34 square miles, compared with one every 13 square miles in suburban counties.
Rural voters also tend to be older, and more of them live with a disability, which “all compounds and makes it that much more important that rural voters especially have access to these ways to cast ballots,” said Peter Skopec, an advocacy director for the group.
About two-thirds of Wisconsin voters favored having “secure and convenient drop off places for absentee ballots which would be accessible 24 hours a day,” a Secure Democracy Foundation poll conducted in November 2023 found.
Meanwhile, more than three-quarters of clerks in Wisconsin support allowing at least one ballot drop box per municipality, according to a 2021 survey by Barry Burden, director of the University of Wisconsin-Madison’s Elections Research Center. More than half favored allowing municipalities to set up at least one, and as many drop boxes as they would like, while 22% said they would prefer to outlaw them.
Andrew Mercil, an appointed Democratic clerk in rural, mostly Republican Dunn County, said he and many other election officials across rural Wisconsin want drop boxes back “for not only ease of voters to be able to participate in democracy, but also so that it helps them with the collection of absentee ballots.”
Other rural clerks acknowledged the risks and hassles associated with the ban, but said that for varied reasons, they oppose lifting it.
Drop boxes: Popular in 2020, banned in 2022
Many municipalities embraced drop boxes beginning in 2020 after the Wisconsin Elections Commission, understanding drop boxes to be legal, pointed to them as a way for clerks to make sure Wisconsin residents could still vote while avoiding polling places during the height of the pandemic. Some clerks had already been using drop boxes for over 10 years, a commission report states.
For the 2020 presidential election, Wisconsin had 528 absentee ballot drop boxes in about 430 communities. By 2021, there were 570.
But opposition to drop boxes swelled after Joe Biden won the 2020 presidential election, and Wisconsin flipped to the Democratic column after favoring Donald Trump in 2016. Conservative Trump supporters alleged that Democrats used drop boxes to gain an electoral advantage, even though the boxes existed across the state, in heavily Democratic and Republican areas.
A conservative group sued the state in 2021, seeking a declaration that voters can return absentee ballots only by mail or by handing them directly to a clerk or a representative of a clerk — not to a drop box. A Waukesha judge ruled in the group’s favor in early 2022, and a divided Wisconsin Supreme Court upheld the ruling.
Some Trump supporters believe the ruling means drop boxes were illegal in the 2020 election, but the court ruling wasn’t retroactive.
Now, liberal group Priorities USA and other plaintiffs are asking the Wisconsin Supreme Court — this time, with a liberal majority — to reverse the ban.
How drop boxes help rural voters overcome challenges
Some clerks in rural Wisconsin told Votebeat drop boxes could lower barriers that they and voters face because of limited work hours and mail delays.
Under current Wisconsin law, voters must hand or mail their absentee ballots to a clerk.
In Burnside, mailing ballots raises issues because the U.S. Postal Service routes the town’s mail through Minnesota, Kono said. A few days’ delay in the mail could cause ballots to show up late. Wisconsin ballots must be received by 8 p.m. on election day.
“The window for absentee voting isn’t really all that big,” she said. “It’s fine if you know you’re going to be gone, but if something comes up, it’s not unreasonable that people are going to realize at the last minute that they need an absentee ballot. And now there’s not enough time to do this convoluted process.”
Drop boxes would have come in handy in the August 2022 election, around the time the entire staff of a post office serving Dunn County quit, said Mercil, the clerk. Workers from neighboring post offices came in to help, but there was a risk at the time that ballots sent by mail wouldn’t be delivered on time, Mercil said.
In that election, 20 absentee ballots (not including those sent to military and overseas Wisconsin residents or in-person absentee ballots) showed up at the clerk’s office too late to count, according to results reported to the Wisconsin Elections Commission. In the higher-turnout November 2022 election, only three Dunn County absentee ballots showed up too late to count.
Carolyn Loechler, the town clerk of Elk Mound in Dunn County, said she should be able to rely on the Postal Service but has sometimes seen weeklong delivery delays. She acknowledged USPS, like many other employers in rural areas, faced worker shortages.
But Loechler said she’s against drop boxes because she works from home and doesn’t want to have to drive to collect ballots from a drop box.
In a brief submitted to the Wisconsin Supreme Court in favor of drop boxes, several clerks pointed to Elcho, a town of about 1,200 people in northern Wisconsin, as an example of an election office that would benefit from legalizing drop boxes. Elcho’s town office is open just six hours a week.
Elcho Clerk Lyn Olenski said she gets by just fine without drop boxes and doesn’t feel strongly for or against them because voters can always hand her their ballots.
“Everybody has access to my cell phone number. I live five minutes from the town hall,” she said. “I work another job right across from the town hall. They know they can call me at any time, and I will meet them here anytime.”
Ballots end up in the wrong place
The ban on ballot drop boxes has sometimes confused voters who were accustomed to using them in previous elections. In some cases, that means their votes don’t get counted.
Trenton Clerk Heather Krueger said that in every election since the 2022 ban, she has found a couple of ballots in the town’s utility bill drop box, even though she has instructed voters not to do that.
To help make sure those votes can still count, Krueger said she contacts those voters and lets them know that state law now requires them to return absentee ballots over the mail or in person to the clerk. Sometimes she drives to the voter’s house.
“It’s kind of silly,” she said. “You just have to hand it to them, and then they … hand it back to us.”
In other instances, though, Krueger found ballots in the utility bill drop box on an election day, or the the night before, and didn’t have time to alert the voters. In those cases, those ballots didn’t count.
“It’s disappointing for everybody when a ballot is returned (last-minute), but not correctly, and we don’t have enough time to notify them of that,” she said. Still, she’s opposed to reinstituting drop boxes because she says there’s less control over who’s returning the ballots.
The Wisconsin Supreme Court ruled in 2022 that voters can return only their own ballot in person to a municipal clerk. The same applies to voters returning ballots by mail, Wisconsin Elections Commission Administrator Meagan Wolfe said. There’s an exception allowing Wisconsin residents with disabilities to get help returning absentee ballots from a person they choose, but it can’t be their employer, or a representative of their employer or union.
A ballot drop box is seen in 2022 outside a Madison Fire Department station at 1217 Williamson St. in Madison, Wis. (Matt Mencarini / Wisconsin Watch)
Voter groups see value in rural drop boxes
Voting rights groups continue to favor drop boxes as a way to ensure access to the ballot for rural voters.
Drop boxes were used in rural communities well before the pandemic, said Eileen Newcomer, voter education manager at the League of Women Voters of Wisconsin, which submitted a brief in the ongoing lawsuit in favor of drop boxes.
They helped accommodate rural voters who live far from their clerk’s office, she said, and provide a way around mail delays that affect rural communities.
In general elections since 2020, the number of absentee ballots (not including special ballots transmitted to military or overseas Wisconsin voters or in-person absentee ballots) that clerks say showed up at their offices too late to count has increased, according to publicly posted data from the Wisconsin Elections Commission. The commission notes that its data, however, is likely incomplete because it relied on clerks’ voluntary reporting to the commission.
The pattern is consistent with the idea that absentee ballot drop boxes help facilitate the timely return of votes, said Burden, the UW-Madison professor.
“It’s probably not making people go out and vote just because the drop box happens to be in their community,” Burden said. “But once they’ve got a ballot in their hands at home, and they’re thinking about … if they’re going to get it back in time, having a drop box just provides that extra option, and it has some benefits because it cuts out the Postal Service as the intermediary and ensures they’re going to make the deadline.”
Are drop boxes legal? Two opposing interpretations
After the 2020 election, conservatives seized on mail voting, and drop boxes in particular, as potential tools for voter fraud. Trump himself said drop boxes were “only good for Democrats and cheating.”
But there’s no evidence that absentee ballot drop boxes were used to commit widespread fraud in Wisconsin. And the way they were used would have made it nearly impossible.
Wisconsin clerks processed absentee ballots from drop boxes just as they did any other absentee vote, including those sent through the mail. With narrow exceptions for military voters, election officials send absentee ballots only to Wisconsin residents who are confirmed to have registered to vote with a valid ID.
Before opening a ballot envelope deposited in a drop box, election officials would verify that it had witness and voter signatures and a witness address. Then they would open the envelope, verify that the person casting the ballot was qualified to vote and that they hadn’t already voted in the election, and record them on the poll books as having returned their absentee ballot. Only then would they tabulate the vote.
Other conservatives didn’t assert widespread fraud but said they played to Democrats’ advantage.
Madison resident River Horn, 6, drops the absentee ballot belonging to her father, Brad Horn, into a ballot drop box on Williamson Street in Madison, Wis., on Oct. 24, 2020. Since then the Wisconsin Supreme Court has ruled that voters must return their ballots directly to a clerk. (Coburn Dukehart / Wisconsin Watch)
One conservative group, the Wisconsin Institute for Law & Liberty, said in a report that Biden’s margin would have been substantially narrower without drop boxes. That same report found communities with drop boxes averaged 48 more voters than similar communities without them, but that liberal communities were likelier than conservative communities to have drop boxes as a ballot return option.
But the most successful legal argument against them — the one that led to their prohibition — is that they just aren’t permissible under state law. That’s the argument in play in the current lawsuit challenging the ban.
The opponents of drop boxes cited a Wisconsin law saying absentee ballots must be mailed by the voter or delivered in person to the municipal clerk. In their view, that doesn’t permit returning ballots to a drop box. They also pointed to a broader law stating that while voting is a constitutional right that should be strongly encouraged, “voting by absentee ballot is a privilege … (that) must be carefully regulated to prevent the potential for fraud or abuse.”
Groups advocating for drop boxes say the law doesn’t restrict how or where Wisconsin clerks can receive absentee ballots — indicating drop boxes could be one of those ways.
Since Wisconsin law is ambiguous about whether drop boxes are legal, they say, the court should interpret the law in a way that doesn’t burden Wisconsin residents’ constitutional right to vote.
After drop boxes came under intense scrutiny following the 2020 election, including allegations they weren’t legal, Republican lawmakers sought to create a state law expressly authorizing their use.
2021 Senate Bill 209 would have allowed municipalities to have an absentee ballot drop box as long as it connected to the building housing a clerk’s office. The proposal would have allowed an additional three drop boxes in cities with 70,000 or more people.
Multiple voting groups opposed the bill, saying it would reduce the number of drop boxes in large cities like Madison and Milwaukee, since they had more drop boxes than the bill would have allowed, and make it harder for people to vote.
Republicans saw it a different way since they didn’t think drop boxes were legal under state law.
“I’m confused by a lot of statements that have been made because SB 209 allows people to have more access to voting,” then-Sen. Alberta Darling, R-River Hills, said on the Senate floor. “SB 209 deals with the fact that drop boxes currently are not in statute. They’re not legal. So number one, we’re legalizing drop boxes.”
The bill passed the Senate but never received a vote in the Assembly as Gov. Tony Evers, a Democrat, appeared poised to veto the proposal. That was less than a year before courts banned the use of drop boxes.
Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Wisconsin’s free newsletter here.
The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.