Ballot Drop Boxes - New Rules for 2024

Background: Priorities USA v. WEC1

Unstaffed drop boxes; municipal clerk discretion; Teigen v. WEC2

On July 5, 2024, the Wisconsin Supreme Court overruled its prior decision, in part, in Teigen v. WEC, and held that secure drop boxes were permitted under state law as a valid method of absentee ballot return. The decision is binding on all lower Wisconsin courts. The use of drop boxes is not mandatory and is at the discretion of the municipal clerk.

This is the Commission’s SOLE issued guidance document related to drop boxes as of this date. The Commission may issue additional guidance in the future to address new questions or aspects of drop box administration and policy ahead of the November 2024 General Election.

FAQs Regarding Ballot Drop Boxes

Does the decision affect all municipal clerks?
Yes. The decision permits all municipal clerks to choose to use secure absentee ballot drop boxes in their jurisdiction if they wish, starting immediately.
What does the decision say?
The Wisconsin Supreme Court determined that the statute that permits voters to return their absentee ballots “to the municipal clerk issuing the ballot or ballots” refers to a person, not a location. The court asserted that this interpretation of state law is consistent with Wisconsin’s highly decentralized system whereby municipal clerks have broad statutory discretion to administer elections in their jurisdiction. Accordingly, since voters may return their absentee ballots to the municipal clerk, or his or her authorized representatives, they may do so via drop box, if that’s a method the municipal clerk chooses to utilize.
Does the decision change any established practice?
Yes. The decision reverses a prior Wisconsin Supreme Court decision, in part, and holds that secure drop boxes are a legal method of absentee ballot return under Wisconsin law.
Do clerks have to use drop boxes?
No. The decision explicitly states that it does not require clerks to use drop boxes, it just says that the law permits clerks to utilize them if they choose. So if a municipal clerk decides not to use drop boxes in an exercise of clerk election administration discretion, they will not be violating the Priorities USA decision. Clerks should note, however, that choosing not to use drop boxes because of a belief that they are not legal is likely inconsistent with the reasoning of the decision, and raises the risk of a legal challenge.
Can a clerk be successfully sued if he or she chooses not to utilize drop boxes?
Likely not. If a clerk chooses not to use drop boxes in upcoming elections, it is very unlikely that a challenger would be successful in arguing that Priorities USA requires them to be used.
Are the Commission’s previous memos related to drop boxes prior to the Teigen decision back in effect?

No. The Commission withdrew memoranda dated March 31 and August 19, 2020 relating to drop boxes as part of the Teigen litigation on February 16, 2022. The Priorities USA decision does not mean either of those memoranda are back in effect.

This memorandum, dated July 11, 2024, is the Commission’s sole issued guidance document related to drop boxes as of this date.

Did the decision discuss where drop boxes may be located and who can set them up?
Yes. The decision stated that drop boxes are set up, maintained, secured, and emptied by the municipal clerk, which includes their authorized representatives. A single person need not set up, maintain, secure, and empty all drop boxes in a municipality. The drop boxes may be placed in a location other than the municipal clerk’s office, and may be placed in any location that the municipal clerk, within his or her statutory discretion, designates.
Do drop boxes need to be secure? What should clerks consider when examining drop box security?
Yes. The decision held that state law permits clerks to lawfully utilize secure drop boxes in an exercise of their statutorily conferred discretion. The decision did not provide guidance on what it means for a drop box to be “secure.” The Commission recommends that clerks keep the following non-exhaustive security considerations in mind when planning to utilize drop boxes, which are consistent with guidance from the U.S. Election Assistance Commission (EAC) and the U.S. Cybersecurity and Infrastructure Security Agency (CISA). These considerations are merely a starting point—the Commission recommends that clerks thoroughly complete a security assessment for each intended drop box location prior to deployment. See the best practices section for more details 
Does the governing body of the municipality need to be the one to designate drop box locations?
No. The governing body of the municipality designates the location of alternate absentee voting sites under Wis. Stat. § 6.855. The Priorities USA decision clearly states that state law “…requires only that the ballot be delivered to a location the municipal clerk, within his or her discretion, designates.”3 The municipal clerk has the authority to designate drop box locations.
Who can return a ballot to a drop box?

A voter may return his or her own ballot. An individual may also return the ballot of anyone he or she is lawfully assisting, such as a voter with a disability or a hospitalized voter. An individual is permitted to provide assistance to more than one disabled or hospitalized absentee voter. These principles were issued in Commission guidance following the litigation in Carey v. WEC, and are unchanged by the Priorities USA decision.4

The decision does not say that drop boxes need to be staffed, nor does the decision require a clerk to ask any questions of a voter who is attempting to return a ballot to a drop box.

What steps should clerks take if they want to display their drop box locations on MyVote ahead of the August 13, 2024 election?

Once implemented, clerks will be able to add drop box locations and information to WisVote under Election Specific Absentee Options, which will make the drop box locations viewable to voters in their municipality on MyVote. Registered voters in these municipalities will be able to see the information under “Find My Local Absentee Options” button from the Vote Absentee section (https://myvote.wi.gov/en-us/VoteAbsentee). Clerks will receive detailed instructions when this functionality becomes available again.

Clerks are encouraged to communicate to voters as to the dates, times, and locations of drop boxes, as well as final retrieval dates and times.

Does the decision require clerks to track which ballots are received by drop box?
No. Nothing in the decision requires clerks to track, mark, or otherwise separate or indicate which returned absentee ballots were received via secure drop box.
May a clerk place an insert informing voters of the availability of drop boxes?
Yes. Clerks may place an insert informing voters of the availability of drop boxes for the return of absentee ballot envelopes. Those inserts are recommended to include the locations of the drop boxes, dates and times of availability, and date and time of final retrieval of absentee ballot envelopes. Such an insert would be considered additional administrative or logistical instructions pursuant to administrative rule EL § 6.05(2).
Will there be additional training on drop boxes?
Yes. Commission staff intend to provide training to clerks in ElectEd that will be consistent with the Commission’s guidance.
Are private citizens permitted to watch drop boxes if they are located in public?

Yes, but not if the watching interferes with voting. Whoever “interrupt[s] or disturb[s] the voting…proceedings” may be fined not more than $1,000, or imprisoned not more than 6 months or both.5 Additionally, anyone who “by abduction, duress, or any fraudulent device or contrivance, impede[s] or prevent[s] the free exercise of the franchise at an election” is guilty of a Class I felony.6

Clerks immediately contact law enforcement if anyone tampers with, defaces, destroys, unlawfully empties, or interrupts, impedes, or prevents the use of a drop box.

What should I do if I still have questions?
If you have additional questions, please email @email.

Best Practices for placing and securing ballot drop boxes

The Commission recommends the following best practices:

Physical Security of the Drop Box Itself

  • The drop box be securely affixed to the ground or the side of the building, or secured such that the drop box cannot be removed or tampered with.
  • If located outside, the drop box be sturdy enough to withstand the elements so the ballots inside will remain unspoiled.
  • The drop box be secured against unlawful access or emptying.
  • The slot of the drop box be appropriately sized so that only an absentee ballot can be deposited and not other objects or liquids.
  • Any damage to or tampering with the drop box be documented and the drop box be inspected to ensure that it remains secure for the purpose of depositing absentee ballot envelopes.
  • The drop box be clearly marked or labeled that the drop box is for the purpose of collecting absentee ballots in return envelopes.
  • The time of final retrieval of ballot return envelopes be clearly marked on or near the drop box. After the time of final retrieval, the drop box be secured to prevent the submission of absentee ballot return envelopes.

Security of the Drop Box Surroundings

  • The drop box be located in a safe location with adequate parking and safe access for pedestrians.
  • The drop box be located in a well-lit area.
  • The drop box be clearly visible, and the path to the drop box be accessible with clear and level ground space in front.

Security of Ballot Retrieval/Emptying

Footnotes

  1. 2024 WI 32. Wisconsin Supreme Court Number: 2024AP000164; Dane County Circuit Court Number: 2023CV1900 ↵
  2. 2022 WI 64, 403 Wis. 2d 607; 976 N.W.2d 519. ↵
  3. Priorities USA v. WEC, 2024 WI 32, P26. The Priorities USA decision also states that Wis. Stat. § 6.855 “…simply does not apply to drop boxes.” Id. at P29. ↵
  4. Available at: https://elections.wi.gov/memo/guidance-absentee-ballot-return-options-under-federal-voting-rights-act. ↵
  5. See Wis. Stat. §§ 12.13(3)(x), 12.60(1)(b). ↵
  6. See Wis. Stat. §§ 12.09(2), 12.60(1)(a). ↵
Subject
Absentee
Legislative Changes & Court Decisions