The Wisconsin Supreme Court’s liberal majority wants to throw out a two-year-old case banning ballot drop boxes while at the same time blasting the US Supreme Court for overturning Roe v. Wade.

May 15, 2024
Perspective by Dan O’Donnell

Now that they have a majority on the Wisconsin Supreme Court, the four liberal justices are itching to reinstate ballot drop boxes, state law and stare decisis be damned.  Less than two years after the Court—with a conservative majority—ruled that drop boxes are unlawful, justices heard oral arguments this week in a lawsuit demanding their restoration before November’s presidential election.

“What if we just got it wrong?” wondered liberal Justice Jill Karofsky, knowing full well that they did not, in fact, get it wrong.  “What if we made a mistake? Are we now supposed to just perpetuate that mistake into the future?”

The only mistake would be again allowing a method of voting that is expressly prohibited by Wisconsin’s absentee voting statute, which very clearly provides that “the [absentee ballot] envelope shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.”  Voters are, as a matter of law, allowed only two options for returning absentee ballots: Mailing them or returning them in person.  Leaving them in an unattended, unmonitored box placed on a random street is not permitted.

“Only the legislature may permit absentee voting via ballot drop boxes,” the Supreme Court’s majority concluded in 2022 in a decision striking down Wisconsin Elections Commission (WEC) guidance to clerks in 2020 that permitted them to use drop boxes.  “WEC cannot.  Ballot drop boxes appear nowhere in the detailed statutory system for absentee voting. WEC’s authorization of ballot drop boxes was unlawful.”

Nothing has changed since then: Both state law and the facts on the ground are identical.  One would think that the concept of stare decisis (Latin for “let the decision stand”) would apply and the Wisconsin Supreme Court would not have grounds to reverse itself, but one important thing has in fact changed: The Court’s partisan makeup.

Shortly after Justice Janet Protasiewicz was elected as the Court’s fourth liberal justice, prominent Democrat attorney Marc Elias filed a suit seeking the reinstatement of drop boxes.  Normally, justices would recognize this move for the judge-shopping partisan hackery that it is, but these are not normal justices: They are themselves partisan hacks who are perfectly willing (and, judging by their behavior during oral arguments, quite eager) to ignore their own Court’s precedent.

Doing so was unconscionable to Protasiewicz when it came to abortions, and on the campaign trail last year she repeatedly excoriated the United States Supreme Court for overturning its decision in Roe v. Wade.

“For almost my entire life, the constitutional right to privacy has been settled law,” she said while announcing her candidacy.  “We must restore confidence that judges aren’t just trying to reach their favored outcomes, but actually applying the law and the constitution.”

Karofsky, too, was far more concerned with respecting precedent while she was running for the Court than she is now, telling The Isthmus in a 2020 candidate profile that she “believes Roe v. Wade is settled law and was correctly decided.”

Stare decisis for thee, but not for me, it would appear.

Karofsky and Protasiewicz, joined by fellow liberals Rebecca Dallet and Ann Walsh Bradley, will not let the ballot drop box decision stand.  They will reverse it, despite the clear letter of the law and judicial precedent that is not yet two years old.

Anyone surprised by this has not been paying attention, as these women have no use for anything that might stand in the way of them helping Democrats win elections.