Drop Box Redux: Wisconsin Supreme Court Reverses Course, Holds Drop Boxes Are Lawful

Dissent declares the "death of statutory stare decisis" in Wisconsin

As anticipated, last week Friday marked an eventful close to the Wisconsin Supreme Court’s 2023-24 term. The court issued its decision in Evers v. Marklein, 2024 WI 31, ruling 6-1 that legislative oversight of the executive branch’s use of Knowles-Nelson Stewardship funds violates the Wisconsin Constitution’s separation of powers principles. Evers is an interesting decision with significant implications for the operation of state government, but we’ll save it for a future post.

In this post, we’re going to take a look at another major decision the court issued on Friday: Priorities USA v. Wisconsin Elections Commission, 2024 WI 32. And for court watchers with even a short-term memory, this case involves a familiar subject—the legality of absentee drop boxes. Two years ago, in Teigen v. Wisconsin Elections Commission, 2022 WI 64, 403 Wis. 2d 607, 976 N.W.2d 519, the court issued a 4-3 decision holding that a drop box was not a statutorily authorized place to return an absentee ballot. Justice Rebecca Grassl Bradley authored the majority opinion in Teigen, and Justice Ann Walsh Bradley authored the dissent.

In Priorities USA, the court granted bypass to review just one question: “Whether to overrule the Court’s holding in Teigen v. Wisconsin Elections Commission that Wis. Stat. § 6.87 precludes the use of secure drop boxes for the return of absentee ballots to municipal clerks.” In a 4-3 decision, the Priorities USA court answered that question in the affirmative, overruling Teigen and holding “that Wis. Stat. § 6.84(4)(b)1. allows the use of ballot drop boxes.” Justice Ann Walsh Bradley (author of the Teigen dissent) wrote the majority opinion, and Justice Rebecca Grassl Bradley (author of the Teigen majority) wrote the dissent. Two years and one judicial election later, Teigen has been turned on its head.

Wis. Stat. § 6.87(4)(b)1.

The legality of drop boxes hinges on language from Wis. Stat. § 6.87(4)(b)1., which says, “The envelope [containing the absentee ballot] shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.” The Teigen court, relying on a plain text reading supported by statutory context, held that “delivered in person” meant that “the voter must personally deliver [the absentee ballot] to the municipal clerk at the clerk’s office or a designated alternate site.”

The Priorities USA court disagreed with that interpretation, reasoning as follows:

By mandating that an absentee ballot be returned not to the “municipal clerk’s office,” but “to the municipal clerk,” the legislature disclaimed the idea that the ballot must be delivered to a specific location and instead embraced delivery of an absentee ballot to a person—the “municipal clerk.” Given this, the question then becomes whether delivery to a drop box constitutes delivery “to the municipal clerk” within the meaning of Wis. Stat. § 6.87(4)(b)1.

We conclude that it does. A drop box is set up, maintained, secured, and emptied by the municipal clerk. This is the case even if the drop box is in a location other than the municipal clerk’s office. As analyzed, the statute does not specify a location to which a ballot must be returned and requires only that the ballot be delivered to a location the municipal clerk, within his or her discretion, designates.

The dissent, of course, disagreed with this statutory interpretation, declaring, “The majority’s reading of Wis. Stat. § 6.87(4)(b)1. is not impossible, just implausible, which is why a court committed to declaring the law rejected it and preserved the statute’s historical meaning.” The dissent pointed to both statutory context and historical clues supporting Teigen’s interpretation of § 6.87(4)(b)1. as excluding drop boxes as a permissible means to deliver an absentee ballot. The dissent also observed that the majority’s interpretation lacked any limiting principle. If § 6.87(4)(b)1. requires only that “the ballot must be delivered to a location the municipal clerk, within his or her discretion, designates,” what other forms of delivery might be permissible?

An unattended cardboard box on the clerk’s driveway? An unsecured sack sitting outside the local library or on a college campus? Door-to-door retrieval from voters’ homes or dorm rooms? Under the majority’s logic, because the statute doesn’t expressly forbid such methods of ballot delivery, they are perfectly lawful.

Stare Decisis

Of course, the truly striking thing about Priorities USA is the court’s abandonment of its Tiegen precedent after a mere two years. The court has previously held that “stare decisis concerns are paramount where a court has authoritatively interpreted a statute because the legislature remains free to alter its construction.”¹ Teigen authoritatively interpreted a statute, so why abandon its interpretation so quickly?

The majority opinion observes that there are several situations in which it will overturn a prior case: (1) changes or developments in the law undermine the rationale behind the decision, (2) there are newly ascertained facts, (3) the precedent is detrimental to coherence and consistency in the law, or (4) the decision was unsound in principle or unworkable in practice.

Here, the majority holds that Teigen was unworkable in practice because it incorrectly interpreted Wis. Stat. § 6.84 to require reading absentee voting statutes with a “skeptical” gloss. That section provides, in part:

The legislature finds that voting is a constitutional right, the vigorous exercise of which should be strongly encouraged. In contrast, voting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place. The legislature finds that the privilege of voting by absentee ballot must be carefully regulated to prevent the potential for fraud or abuse; to prevent overzealous solicitation of absent electors who may prefer not to participate in an election; to prevent undue influence on an absent elector to vote for or against a candidate or to cast a particular vote in a referendum; or other similar abuses.”

In Teigen, the court relied on this statute for the proposition that “legislative policy directs us to take a skeptical view of absentee voting.” In Priorities USA, the court concluded that the Teigen court’s reliance on this statement of legislative policy “altered the lens through which it viewed the statutory language,” leading it to an incorrect interpretation of “delivered in person” in § 6.87(4)(b)1. “The Teigen court’s error in this regard permeated its analysis to such a degree that its analysis was not merely wrong, but was unsound in principle.” Thus, the court felt free to overrule Teigen.

In the dissent’s view, “This case marks the ‘death of statutory stare decisis’ in Wisconsin.” It explains:

Going forward, whether decisions that interpreted statutes receive extra stare decisis protection will depend solely on the will of four and the extent to which respecting or discarding the doctrine favors their preferred outcome. The majority may revive statutory stare decisis whenever the four find it convenient. Such manipulations of the doctrine will only prove what a “result-oriented expedient” today’s decision is.

Full disclosure: I was a clerk at the court when Teigen was decided. But any way you look at it, it’s hard to disagree with the dissent here. The Priorities USA majority concluded Teigen must be overruled because, in its view, the Teigen court improperly interpreted a statement of legislative policy when interpreting a statute. In other words, we’re overruling your statutory interpretation because you also misinterpreted another related statute. That strikes me as an exceptionally weak basis to revisit a recent precedent on an interpretation affecting a single issue of law—especially when the political branches are free to enact legislation rejecting the court’s decision.

For its part, the majority drops a footnote declaring that its “decision in this case does not portend the death of statutory stare decisis.” Rather, the court insists, “We strongly stand by our principles of stare decisis and our decision in this case to depart from precedent was not made casually.” Make of that what you will.

1. Progressive N. Ins. Co. v. Romanshek, 2005 WI 67, ¶45, 281 Wis. 2d 300, 697 N.W.2d 417.