MADISON, Wis. — Wisconsinites could once again be able to return their absentee ballot to a drop box this fall if the state Supreme Court essentially decides to overrule itself.
In July 2022, the then-conservative Wisconsin Supreme Court ruled there was nothing in state law that allowed for absentee ballot drop boxes except for in clerks’ offices.
The state’s high court heard oral arguments Monday morning from both sides in a lawsuit filed by Democrats that seeks to overturn the previous decision now that a liberal-leaning majority controls the court.
Lawyers for Democrats argued the Supreme Court got it wrong two years ago and misinterpreted the law, and wrongly decided that ballots can only be returned to an election clerk in their office.
“Teigen read a restriction into the statute that simply is not there and, in doing so, made it harder for municipal clerks to carry out their duties and for Wisconsin voters to return their ballots for no adequate legal reason,” David Fox, representing Priorities USA, told the justices.
Meanwhile, conservatives on the court questioned the need to revisit the case in the first place.
“If the Legislature thought it permissible for people to vote by drop box or some other means, they would have specified it, right,” Justice Rebecca Bradley asked. “The argument cuts both ways.”
However, those arguing for Democrats, including the governor, insisted the law is not clear about where ballots can be returned.
“These mixed interpretations of what clerks can do is an outstanding question, and that it is one thing to say that drop boxes are unlawful and another thing to leave unanswered for clerks the question of how precisely they can accept ballots,” Erin Deeley, appearing on behalf of Gov. Tony Evers, said.
Attorneys for the Republican-controlled Legislature said there haven’t been any changes in facts or the law to justify overturning the high court’s previous ruling.
“It must mean that a decision rendered two years ago on the meaning of a statute where no factual or legal developments have occurred, where absolutely no new arguments have been raised, must be adhered to,” Misha Tseytlin told the court.
At times, liberal-leaning justices pushed back and pointed out that things are generally permitted unless they are forbidden.
“There is no way, even though our statute books are quite long and there are quite a few of them, that it could possibly ever encompass every tiny little thing that ever existed in any realm, especially election law,” Justice Rebecca Dallet stated.
If the court were to overturn its own past ruling, the lawyer for Republicans said it will likely have to revisit the case for a third time when the majority control changes again, which could happen next year.
“I can guarantee you that if the dissent in Teigen becomes the majority in this case, that when the court’s composition changes in a year, that the new dissenters are going to think the majority’s decision was ‘unsound on principle’ under this new ‘we just disagree’ standard and we are going to be back here again.”
With less than six months until the general election in November, an about-face ruling from the Supreme Court is all but certain to impact what is already expected to be a tight presidential race in Wisconsin.