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In 2022, the Wisconsin Supreme Court, then dominated by conservatives, banned the ballot drop boxes that had been used for decades but became especially popular during the pandemic. Then, in 2024, after an election shifted its majority to liberals, the court reversed itself and made drop boxes legal again.
Yet the number of drop boxes available to voters around the state has dwindled. The flip-flopping rulings from a court that’s supposed to serve as the last word on Wisconsin law made many election administrators wary of offering drop boxes at all. So a state that once had nearly 600 drop boxes now has just a few dozen, largely clustered around Madison and Milwaukee.
It’s an example of how ideological swings on Wisconsin’s highest court and an influx of lawsuits in all Wisconsin courts are roiling parts of the state’s election law and complicating the work of local election administrators, with a real impact on voters.
The court also reversed itself in 2023, when under liberal control it ruled that legislative maps chosen by the court in 2022, then under conservative control, were unconstitutional. That forced county clerks across the state to redraw their districts just months before an election.
And in a recent opinion about the tenure of political employees, liberal justices were explicit about their willingness to overturn more precedent-setting cases.
As a swing state with routinely close elections, Wisconsin was already a key battleground for fights over election law issues, but because of the state’s divided, gridlocked government — Democratic Gov. Tony Evers and the Republican-controlled Legislature have been at loggerheads since 2019 — more of those fights are ending up in court, with some high-profile cases before the Wisconsin Supreme Court.
The court only rarely revisits past decisions, but those few instances have emboldened activists to initiate still more legal challenges. A case currently before the Wisconsin Supreme Court seeks to undo a law that gutted collective bargaining for most public employees — a law the court previously upheld under a conservative majority.
With another Supreme Court election approaching April 1, the court’s balance of power is once again at stake. That means its positions on voting rights and political appointments could shift yet again from where they were just a few months earlier.
How legal experts view the court’s instability
Law experts say the high court doesn’t often reverse itself on cases involving election administration, and that some shifting is natural in a state where voters choose supreme court justices.
Stability is a critical value in the law, said Chad Olfather, a constitutional law professor at Marquette University. But there are other values that conflict with stability, he said, such as — in the case of redistricting — ensuring laws are constitutional.
But the recent instances, the experts say, reflect the increasing number of election issues being settled by the courts.
“This is a national problem, but we experience it disproportionately in Wisconsin because our elections are so close,” said Jeff Mandell, founder of the liberal law firm Law Forward and one of the state’s most prominent election attorneys.
Ultimately, the more intense fights over election law are a sign of changing political tactics, said Michael Kang, a law professor at Northwestern University. Political parties that once focused more on messaging and mobilization have gotten better at identifying how different voting rules can affect their turnout, so “election law generally has become more partisan.”
“What’s more, I think judges have become more partisan, in terms of the spread between them ideologically and the way that they’ve applied their kind of philosophy to election rules,” he said.
Clerks and election workers feel the impact
For election officials, the growing volume of lawsuits often makes the job harder. Courts take time to rule on cases, but once they rule, clerks have to move quickly to ensure compliance with new rules in time for the coming election.
In the past that has meant clerks — many of whom have part-time positions and whose roles extend far beyond just running elections — had only a few weeks before an election to remove drop boxes and change procedures to stop filling in missing information on voters’ absentee ballot envelopes.
It’s especially challenging in a state like Wisconsin, where elections are run at the municipal level, said Sun Prairie Clerk Elena Hilby. “It’s not like you can tell this core group of 50 people, ‘This is how the law changed.’ You have to tell a core group of 1,850 people that it’s changed, and they need to change their ways.”
Hilby says she and other clerks hear the frustration from voters.
“They’re like, ‘What are you guys doing?’ And we’re like, ‘Well, it’s not us,’” she said. “And most of them know that, but just as it’s confusing for the voters, it’s confusing for us.”
Litigation can sometimes clarify murky election laws, Rock County Clerk Lisa Tollefson told Votebeat, but the frequency of lawsuits makes coordination difficult. It is her responsibility to communicate changes in the law to all of the county’s 29 clerks. Those municipal clerks then have to relay those changes to their election inspectors — some of whom work part time every few years.
How the court cast a cloud over drop boxes
The drop box cases illustrate how the court’s inconsistency can undermine the effect of its rulings.
Drop boxes had been used widely across the state for decades but their use grew significantly during the 2020 election, as voters sought a safer method for returning ballots amid the peak of COVID-19.
After the then-conservative Wisconsin Supreme Court banned drop boxes in July 2022 — ruling that voters had to return their ballots directly to the clerk — clerks had to adjust to the ruling quickly. A lower court had already ruled drop boxes illegal in January 2022, just weeks before a primary election, but the high court ruling made clear to clerks that their drop boxes couldn’t be used for ballots anytime soon.
But it wasn’t as simple as removing or sealing off the drop boxes. Some Wisconsin municipalities used the same boxes for utility payments, which they wanted to continue collecting that way. So they had to put new instructions on the boxes that superseded the instructions included with the ballot.
Still, in some cases, voters kept returning their ballots to those drop boxes. Sometimes, clerks would return those ballots to the voter, only to have the voter hand it right back. In other cases, the ballot didn’t count at all. Voters who might have followed the procedure they had used in previous elections suddenly stood to lose their vote.
After liberals gained control of the Wisconsin Supreme Court, a lawsuit successfully challenged the ban, leading to the reinstatement of drop boxes in 2024 — again, in July, just weeks before a primary election. Municipalities had to move quickly to make decisions about whether and how to make them available for the August and November elections.
Some municipalities decided not to use drop boxes due to cost concerns and a belief that they were mainly useful during the COVID-19 pandemic.
In other places, the drop boxes returned, but with evidence of lingering suspicions from the legal arguments that led to the 2022 ban. Clerks had to take extra steps to reassure voters that the drop boxes were secure and not vulnerable to fraud. There would be fewer of them, and access would be limited. In Wausau, Mayor Doug Diny unilaterally removed the drop box against legal advice, leading to an ongoing local ethics probe and state criminal investigation into his conduct.
Despite being reversed, the court’s ban of drop boxes in 2022 has contributed to a persistent narrative that drop boxes aren’t an acceptable way to return ballots, said Bryna Godar, a staff attorney at the University of Wisconsin Law School’s State Democracy Research Initiative.
Court opens the door to more challenges
The Wisconsin Supreme Court’s position on the state’s legislative maps has also swung back and forth, creating problems for election officials and voters, and contributing to the perception that the court’s position is driven by partisanship.
In 2022, after the governor and Legislature couldn’t agree on a set of legislative district maps, the court chose boundaries that all but ensured significant GOP majorities in the statehouse. After liberals took control in 2023, the justices struck down the Republican-drawn maps as unconstitutional, ordering the creation of new politically neutral maps.
After those new maps were enacted in February 2024, six months ahead of the August legislative primary, clerks had to rearrange their voters, again, into new wards and districts — work that typically takes place once a decade. Mistakes were rare but consequential: In a couple of cases, clerks initially drew some voters into the wrong legislative districts, and in the northern town of Summit, voters showed up during the August 2024 primary to find that their ballots had the candidates for the wrong Assembly district. Ultimately, 188 voters were unable to vote for the candidates who would represent them.
Under liberal control, the court has also expressed a willingness to reverse more of its previous rulings.
In allowing Wisconsin’s chief election official, Meagan Wolfe, to remain in office past her term, the justices relied on a 2022 ruling by the then-conservative-led court that permitted other political appointees to stay on after their terms expired. But liberal Justice Jill Karofsky, in a concurring opinion joined by two other liberals, said “it may behoove” the court to overturn that same decision. That comment prompted conservative Justice Rebecca Bradley to suggest that the liberal majority didn’t respect precedent.
Such an apparent invitation to overturn precedent is somewhat common in the U.S. Supreme Court but far rarer in the Wisconsin Supreme Court, Mandell of Law Forward said.
Mandell sees the potential risks of that pattern but said the volume of election litigation is unlikely to ease anytime soon. He is one of the state’s most prolific election lawyers, frequently arguing before all sorts of state courts and the Wisconsin Elections Commission on behalf of clients seeking to expand voting access.
“I get it, I’m part of the problem. We would be better off with less of this election litigation,” he said. But if people advocating for wider voting access stop fighting these cases, he said, the other side will have the unilateral ability to shift policies.
“It’s not quite clear what the path out of this is,” he said, “or where we’re going to get some kind of rational, deliberative process that tries to fill these holes and bring our election code up to speed.”
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Alexander at ashur@votebeat.org.
