Wisconsin’s District 4 Court of Appeals put a hold on Waukesha County Circuit Judge Michael Bohren’s decision to prohibit the use of absentee ballot drop-off boxes Jan. 24.

Various groups including the League of Women’s Voters of Wisconsin and Disability Rights Wisconsin immediately appealed Bohren’s Jan. 13 ruling, arguing the decision came too close to the Wisconsin Feb. 15 primary election. The decision by the District 4 Court of Appeals to put the case on hold was unanimous.

The Wisconsin Election Commission overstepped its bounds in allowing absentee ballots to be cast at drop boxes, according to those who oppose the drop boxes, like former Ozaukee County Circuit Judge Joseph Voiland.

“The Wisconsin Election Commission — an unelected body — is making new law and new policy just by posting a document on their web page,” Voiland said.

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State statues simply do not permit the Election Committee to allow drop boxes, Bohren said in his ruling.

Despite this, the District 4 Court of Appeals judges worried that changing the rules so close to the primary election would create fear votes already placed in drop boxes would not be counted, an article from the Milwaukee Journal Sentinel said.

University of Wisconsin professor of Political Science and director of the Election Research Center Barry Burden said he is not surprised by the Appeals Court’s decision to hold Bohren’s ruling because historically, courts avoid changing election rules too close to the deadline.

“But, I think it’s uncertain whether or not the drop boxes will be allowed for the bigger elections that are coming later,” Burden said.

There will be no February primary election this year in Dane County because not enough candidates have decided to run, according to the Madison City Clerk’s office website. But Bohren’s original ruling would have had far greater impacts this month for the city of Milwaukee, an article from local Milwaukee news TMJ4 said.

“In Milwaukee, there’s a hotly contested mayoral race and Milwaukee is one of the cities that made greater use of the drop boxes, so it will probably be an important part of how voters return their ballots there,” Burden said.

In some cases, people might not cast a vote at all because they don’t know how or they worry their vote won’t be counted, Burden said.

More than 168,000 absentee ballots were counted in Dane County during the 2020 presidential election — some of which were deposited in ballot drop boxes, according to the county’s election website. As the use of drop boxes has become mainstream, arguments over their legality have grown, according to an article from PEW Research Center.

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“Setting aside the part of whether these fights are good for one side or the other, they’re bad for democracy because they tend to discourage people from participating in elections and civil society,” UW professor of Sociology Lewis Friedland said.

Friedland predicts those most affected by tumultuous voting laws will be young, less partisan voters. While it is often assumed bans on ballot drop boxes will benefit Republicans, evidence of it on voter turnout is not very clear, Friedland said.

Since the Wisconsin Election Commission is gridlocked between three Republican appointees and three Democratic appointees, it is all but certain the controversy over drop boxes will have to be settled in court, Burden said.

The conservative-leaning Wisconsin Institute for Law and Liberty has appealed the district court’s decision to the Wisconsin Supreme Court, according to the institute’s website.

Voiland said the goal of the institute’s lawsuit is not focused on halting the use of drop boxes for the February primary, but for the elections that follow later this year.

While the fate of drop boxes for the November general midterm election is uncertain, so is the effect the decision will have on election results, Burden said.

During the height of the COVID-19 pandemic, absentee ballot drop boxes were used more widely than ever before and helped ensure votes would be counted by the 2020 election deadline, according to a study conducted by the Stanford-MIT Healthy Elections project.

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Drop boxes were one of the big innovations in 2020 … people often felt more secure when putting their ballot in a dropbox where they knew it would make it to the election official by the deadline,” Burden said. “They were an essential part of that election and it would be a big deal if courts or legislature decide they can’t be permitted in Wisconsin.”