Nearly everyone is expecting a razor-thin margin in the presidential election in Wisconsin, which once again appears poised to be a swing state critical to Donald Trump and Kamala Harris’ bids for the White House. With all eyes on every ballot, one once-controversial tool for election administrators will be back in play in November: ballot drop boxes. And in some places in Wisconsin, they’ll even get a trial run in next week’s primary election.
Last month, the Wisconsin Supreme Court reversed its ruling two years earlier that had banned clerks from using drop boxes to collect mail-in absentee ballots. These boxes will give voters in Milwaukee and in places around the state the option to plan ahead and cast their votes prior to Election Day and avoid polling places altogether. Ballot drop boxes played a large role in the 2020 pandemic election.
The Milwaukee Election Commission has already mailed out at least 21,000 absentee ballots for Tuesday’s primary, and commission executive director Paulina Gutierrez anticipates sending out more than 80,000 for the November general election. That would be less than half of the nearly 176,000 absentee ballots the city processed for the November 2020 election.
“There are specific reasons people prefer the drop boxes here in Milwaukee,” Gutierrez says. “They are most critical in that period when early voting ends the Saturday before election, and people are worried their ballot won’t make it in time to be counted. Well, that’s when those drop boxes are used and there is that guarantee that if you get the ballot in by a certain time, it will be counted.”
It’s time to pick your Milwaukee favorites for the year!
Wide Use in Pandemic Election
Drop boxes were installed by election officials in some counties to give voters an easier, more accessible way to cast an absentee ballot in elections when they were unable to make it to the polls during the limited voting hours on Election Day. Voters could request a ballot by mail, fill it out and drop it in the box, commonly attached to municipal buildings. Ballots still must be deposited in the drop box by the voter themself, though there are exceptions for voters with disabilities or who are hospitalized. Before their removal in 2022, there were 570 drop boxes installed in 66 of Wisconsin’s 72 counties.
Starting in 2002, the share of ballots cast absentee increased from 6% to 30% in 20 years, with 763,775 absentee ballots in 2022.
Despite the COVID-19 pandemic, Wisconsin saw a record number of votes cast in the 2020 presidential election – nearly 3.3 million, a 72% turnout upabout 6 points from 2016 – and a record number of absentee ballots. For the first time, majority of the votes were cast absentee – nearly 2 million ballots via mail, drop box or in person.
Kathleen Dolan, professor of political science at UW-Milwaukee, does not believe that ballot drop boxes were a factor in the record turnout. “We have no evidence to suggest that ballot boxes increased voter turnout,” Dolan says. “What increased turnout in 2020 was the fact that it was one of the most competitive elections we’ve ever had. These are people [using the boxes] that are voting because they took action beforehand and prepared to get that ballot.”
While the state’s drop boxes have always operated in a gray area of state law, Wisconsin is among at least 30 states that use them, according to the U.S. Vote Foundation, and their use generally has been viewed most favorably by Democratic voters. In addition to Wisconsin, key swing states including Georgia, Pennsylvania and Arizona have been restricted access to drop boxes following the results of the 2020 election, citing concerns about election security.
Legal Challenges to Boxes
Wisconsin’s use of drop boxes came to an abrupt halt in July 2022, when ballot drop boxes were declared unlawful and outlawed by the state Supreme Court.
The 2020 landslide of absentee ballots raised red flags among Republicans, who have long challenged election integrity even prior to the 2020 election. After Trump’s loss to President Joe Biden, many Republicans, including Trump, pushed back against the constitutionality of mail-in ballot drop boxes across the country, suggesting that violations of laws governing absentee voting cost him swing states such as Wisconsin that could have delivered Trump re-election.
In June 2021, the conservative advocacy group Wisconsin Institute for Law & Liberty (WILL) sued the Wisconsin Elections Commission, which had issued guidance to local clerks that allows for drop boxes, on behalf of two Waukesha residents.
The case cited state law that requires that absentee voting must be carefully monitored for fraud or abuse. Under Wisconsin Statute 6.84, there are just two legal ways in Wisconsin to submit an absentee ballot: “The envelope [containing the ballot] shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.” Therefore, WILL argued, “drop boxes are illegal because a voter must personally mail or deliver in person the voter’s absentee ballot to the municipal clerk, not to an inanimate object.”
That October, while the case was still before Waukesha County Circuit Court Judge Michael Bohren, the state’s nonpartisan Legislative Audit Bureau completed a report on the state’s election administration that included several recommendations and concluded that ballot drop boxes are neither permitted nor prohibited by state law.
In January, Bohren agreed with the plaintiffs and ruled that absentee ballot drop boxes do violate state law. The case was appealed directly to the Wisconsin Supreme Court, which at the time had a 4-3 majority of conservative-leaning justices. The court upheld the circuit court ruling, concluding that clerks are prohibited from designating drop boxes as an absentee ballot delivery option if they are located outside the clerk’s office, as drop boxes are not aligned with Wisconsin state voting laws.
Ballot drop boxes around Wisconsin were bagged up and locked away for subsequent elections, including the congressional midterm and a host of state and local races. But they’re returning this election cycle – because of a Supreme Court with a slightly different makeup that interpreted that little gray area slightly differently.
What appeared to be settled case law was upended earlier this year when a group of plaintiffs led by Priorities USA, a Democratic super PAC, challenged the court’s decision less than two years earlier. The case returned to a new-look Wisconsin Supreme Court. With the election of Justice Janet Protasiewicz in April 2023, liberal-leaning justices now hold a 4-3 majority, and the court issued a decision by that margin in favor of the use of drop boxes.
Dolan said the reason the case was able to be flipped on the issue is because of the vague language used in the law – it neither explicitly outlaws or allows ballot drop boxes.
“The first case asked the question of, are drop boxes explicitly allowed? Are they named? Because yes, state law says that absentee ballots must be returned by mail or in person, so in the 2020 case, people argued that ballot boxes were not allowed,” Dolan says. “But now what the court said in 2024 is, that is the wrong question. The question was not are drop boxes allowed, but are they forbidden? Are they prohibited by law?”
Barry Burden, a professor of political science at UW-Madison and founding director of the Elections Research Center, says the full effect of their return will vary by state and county based on voter confidence in the boxes.
“There were some states that tried [the boxes] in 2020 and decided that they were fine for the pandemic, but now they’ve pulled back and will not be using them again, or they’ve put restrictions on them,” Burden says. “In Georgia, they now have these really tight rules about where the boxes can be and when they can be used … But in other states, they’ve just really embraced them. They used them in 2020 and found them so helpful, and they decided to expand.”
Drop Boxes Are Back
Milwaukee Mayor Cavalier Johnson released a statement on July 5 applauding the Supreme Court’s decision on drop boxes, saying it will help Wisconsin voters have easier access to voting. “There is no credible evidence drop boxes are an avenue for election law violation,” Johnson said in the statement. “Milwaukee will have appropriate protocols in place to assure continued election integrity.”
For upcoming elections, Dolan and Burden both agree that, despite their past controversy, the boxes can increase voter access, especially in smaller communities where voters may live longer distances from polling places. Ballot boxes also offer an option for working voters unable to make it to a voting location during polling hours.
With the legal runway cleared, the WEC last month released guidance to election officials on how to ensure the security of ballot boxes for use during the 2024 elections. Some of these guidance items include making sure the boxes are located in safe, well-lit areas and are easily accessible to voters.
However, the offering of drop boxes remains up to the discretion of county election clerks, which means they may not be available to every voter. “It’s possible that some conservative, Republican-dominated areas of the state might not use [drop boxes],” Dolan says, “because they still believe that something went wrong in the 2020 election.”
Even though some Republicans are still skeptical of the integrity of ballot drop boxes, a number of Republicans have generally adjusted their position on drop boxes since 2022. Republican leaders are now actually encouraging the use of drop boxes for the 2024 elections to keep up with their Democrat voter counterparts. Even Trump has encouraged voters to use early voting, although he did not explicitly name drop boxes as one of those methods.
“Republicans have really changed their tune about voting by mail,” Burden says. “The party is now emphasizing voting early and making use of all the ways of voting that are available. The mindset is ‘if the Democrats are going to take advantage of them, then [Republicans] need to take advantage of them.’”
The state chair of the Wisconsin GOP, Brian Schimming, has said it’s a matter of seeking every tool possible in a tight races with Democrats in this year’s election. “I have spoken nationally, in the state, and at local levels about the need for Republicans to be realistic and if the state law that affects this election says we’ll have drop boxes or we end up with ballot harvesting, we’re going to do what it takes to win,” Schimming told reporters at the state GOP convention in Appleton in May.
Milwaukee Has 13 Boxes Ready for Ballots
In Milwaukee, Gutierrez says she has been working on restoring access to drop boxes and planning their operation since well before the July 5 decision.
“We knew a decision was coming [regarding the drop boxes], so we did a light audit prior where we drove to each one and opened them up to see how they looked,” Gutierrez said.
Prior to the ban, Milwaukee had 15 drop box locations, and there will be 13 in operation for Tuesday’s election – at most public libraries, the Elections Operation Center on Kinnickinnick Avenue and outside City Hall. Two more will be added, Gutierrez says, after completion of the new Martin Luther King Library (expected in 2025) and replacement of the drop box in Washington Park.
The boxes will be under 24-hour surveillance with a camera either on the box or located nearby, Gutierrez says. Additional guidance and information on drop boxes, including a map of drop box locations, was posted to the city of Milwaukee website on Aug. 1. People can cast their mail-in ballots in the drop boxes until 6 p.m. on Election Day.
“The right to vote is such an important part of being an American,” Gutierrez said. “So the opportunities that we make for voters as more secure, convenient ways to vote are always important.”
Editor’s Note: This story has been updated to correct who may legally deposit completed ballots in a drop box, adding the exception for hospitalized people and those with disabilities.
It’s time to pick your Milwaukee favorites for the year!
