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A Waukesha District Judge ruled that absentee ballots were not permitted under Wisconsin law, a decision that could potentially deny voting ahead of key state elections.
District Court judge Michael Bohren, who ruled from the bench on Thursday, ordered the Wisconsin Electoral Commission to override its instructions to officials on how to use the mailboxes, saying the WEC exceeded its authority when issuing the recommendation.
“Looking at the statutes, there is no specific permit for mailboxes,” Bohren said.
Bohren’s decision sided with the conservative Wisconsin Institute for Law and Freedom in a lawsuit against the commission. It is almost certain to appeal against the judgment.
The Electoral Commission issued guidelines in 2020, first in March and then again in August in the run-up to the Wisconsin presidential election. The move came as more and more people turned to absentee during the COVID-19 pandemic.
The commission’s lawyer, Deputy Attorney General Stephen Kilpatrick, argued in court that the documents were to be councils for local election officials.
“These statements are indicative because they lead local election officials,” Kilpatrick said. “They don’t order them to do anything.”
But WILL lawyer Luke Berg argued that since there was no state law that would explicitly allow for landfills, there was no legal standard for what form they should take.
“A shoe box on a park bench would be legal to collect ballots,” Berg said. “That’s absurd, of course. But that’s a logical consequence of the Commission’s position.”
Judge Bohren agreed, noting that although the election commission’s instructions went into great detail about the construction and location of the folding boxes, the law did not allow them to do so.
“It’s all good and nice, but there’s no authority,” Bohren said.
Bohren called the commission’s report “a fundamental political decision that is changing[s] how our voting process works in absentia “and said it was broad enough to be issued as an administrative rule requiring legislative approval.
Bohren said he was giving the election commission until January 27 to cancel its instructions to officials. The Commission or other parties to the case could, if appropriate, appeal the case before doing so.
“WEC staff and commissioners plan to review the injunction and consult with a solicitor in the coming days,” said Wisconsin Election Commission spokeswoman Riley Vetterkind.
The case is one of several filed by Republicans and their allies in an effort to change the rules for voting before the 2022 election. ballot box guidelines as an emergency rule that would give Republican lawmakers the power to block it.
Although the mailboxes have become one of the many hotspots following the presidential elections in November 2020, there have been times in the not too distant past when they were not considered controversial.
For example, a letter from Republican lawmakers on September 25, 2020, explicitly supported the use of mailboxes.
“We wholeheartedly support voters to use any of these convenient, safe, and expressly permitted methods of returning absentee ballots,” wrote Attorney General Misha Tseytlin, Assembly Vice President Robin Vose and then Senate Majority Leader Scott Fitzgerald.
Should this case go to the Supreme Court in Wisconsin, all eyes will be on Conservative Judge Brian Hagedorn, the court’s swing vote. Hagedorn has ruled against former President Donald Trump and his allies in several lawsuits to reverse the Wisconsin presidential election in 2020.