Drop-kicking drop boxes, the sequel: Groups ask SCOW to reconsider its ballot drop-box ban

By Gretchen Schuldt
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The Wisconsin Supreme Court’s decision banning ballot drop boxes should be reconsidered because the court’s lead opinion contains “inaccurate and ahistorical analyses” of statutes and precedents, groups supporting drop boxes contend in a court filing.

In response, lawyers for Richard Teigen and Richard Thom, who challenged drop boxes, said “every premise of their (the groups’) argument is incorrect” and the court should deny the reconsideration request.

Last month, the court said in Teigen v. Wisconsin Elections Commission that state law prohibits the use of ballot drop boxes. The ruling depended on 1986 changes in state law that converted some statutory provisions related to absentee ballots from non-mandates into mandates. An action taken in violation of a mandatory provision in a law is void.

The changes, the court said, made mandatory the language directing that absentee ballots be returned by mail or delivered by the voter to the municipal clerk at the clerk's office or a designated alternate site. 

​The new filing by Disability Rights Wisconsin, Wisconsin Faith Voices for Justice, and the League of Women Voters of Wisconsin says the lead decision misunderstood a 1955 election case called Sommerfeld v. Board of Canvassers of City of St. Francis  and subsequent rulings.

The Sommerfeld court “reached a … holding that substantial compliance is sufficient to meet the requirements of a mandatory statute: ‘even in those states which have adopted a rule of strict construction ... substantial compliance therewith is all that is required,’ ” attorneys for the groups wrote.

Even after the law was changed in 1966 to make statutory language about absentee ballots mandatory, the court held that substantial compliance was enough, the groups said.

“In 1974, this Court decided Lanser v. Koconis, which resolved a challenge to 33 absentee ballots cast by nursing-home residents,” the lawyers wrote. “Rather than mailing an absentee ballot to each resident who applied for one, the clerk had an employee of the Wauwatosa Police Department deliver the ballots to the nursing home. Moreover, some of the residents did not fully complete the certification required for an absentee ballot to be counted.”

A lawsuit challenging the ballots was filed. The Supreme Court ruled that the ballots were in substantial compliance with the law and so were valid.

Lanser reaffirms that “interpreting an election statute as mandatory is not dispositive and marks the beginning, rather than the end, of judicial consideration,” the groups wrote. “Under Lanser, just as under Sommerfeld, once a court determines a statute is mandatory, it must then determine whether there has been substantial compliance. And, if there has been substantial compliance, that meets the mandatory statute’s command.”

The legislature revised election laws again in 1986, specifically recognizing absentee voting as a privilege, not a right, the groups said. The revision also “picks up the theme previously scattered throughout various absentee-voting statutes, declaring that specific provisions ‘relating to the absentee ballot process ... shall be construed as mandatory’ such that absentee ballots ‘cast in contravention of the procedures specified in those provisions may not be counted.’ ”

None of those changes, however, changed the “substantial compliance” standard, the lawyers wrote.

“Drop boxes are safe, secure, convenient mechanisms designated by municipal clerks to facilitate voters returning completed absentee ballots,” the lawyers wrote. “Though return to a drop box is not precisely a return to the municipal clerk’s office, it comes close enough to satisfy the substantial-compliance test this Court prescribed in Sommerfeld and reiterated in Lanser. The Teigen Court reached the opposite outcome primarily because it misconstrued Sommerfeld and failed even to acknowledge Lanser.”
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“The Court should grant this motion for reconsideration and reverse its decision in Teigen,” the lawyers said. If the justices refuse to do that, the court should “issue a memorandum that fully and forthrightly addresses the statutory history and precedential decisions omitted from the Teigen opinions.”

The groups are represented by the law firms of Stafford Rosenbaum and Law Forward, both of Madison. Teigen and Thom are represented by the Wisconsin Institute for Law & Liberty, of Milwaukee.