On Friday, the Wisconsin Supreme Court’s Republican majority outlawed ballot drop boxes by a 4–3 vote, abolishing a reform that had made voting easier and more accessible in the state. The lead opinion—authored by the notorious fringe-right reactionary Justice Rebecca Grassl Bradley—contains alarming language casting doubt on the legitimacy of Joe Biden’s 2020 victory. It also grants credence to the GOP’s collapsing “investigation” to prove that illegal votes put Biden over the top in Wisconsin. Without a shred of evidence, the court has thrown its weight behind a dangerous conspiracy theory that helped to fuel the Jan. 6 insurrection.
Friday’s case, Teigen v. Wisconsin Election Commission arose long after election officials began providing drop boxes for voters. In 2020, the COVID-19 pandemic overwhelmed the state’s mail ballot system and scared voters away from physical polling places. The Wisconsin Election Commission responded by issuing guidance allowing municipal clerks, who serve as chief election administrators, to set up drop boxes where voters could deposit their ballots up until the polls closed. This innovation ensured that voters could cast a vote without risking infection or fearing that their mail ballots would arrive too late to count.
No one challenged this practice in court at the time, and in fact Justices Brett Kavanaugh and Neil Gorsuch cited it as proof that voting was easy in Wisconsin. Then, in 2021, the far-right conservative group Wisconsin Institute for Law and Liberty (or WILL) filed a lawsuit alleging that drop boxes violate state law. It argued that voters may return absentee ballots in only two ways: personally place them in a mailbox, or deliver them in person to the municipal clerk.
In Teigen, the Wisconsin Supreme Court’s four Republican justices largely agreed, though the three ultra-conservatives split with the swing vote, Justice Brian Hagedorn, on several points. The statute at issue says that absentee ballots “shall be mailed by the elector, or delivered in person, to the municipal clerk,” who has extremely broad authority to decide how they will receive ballots. In 2020, the elections commission provided guidance stating that clerks can set up “secure” drop boxes to receive ballots. By the next year, there were 570 drop boxes in 66 of Wisconsin’s 72 counties. Biden won by about 20,000 votes.
In her opinion for the court in Teigen, Justice Grassl Bradley declared that every single drop box was illegal, and every citizen who used this method cast a ballot illegally. Why? The justice added a word to the statute, insisting that voters must return absentee ballots to the municipal clerk’s office. Returning a ballot to some other location under the exclusive control of the clerk does not suffice. Moreover, Bradley held that only the voter may return their ballot to a municipal clerk; a family member or friend may not do it for them.
As Justice Ann Walsh Bradley explained in dissent, Wisconsin law simply does not impose these requirements. (Side note: The existence of two Justice Bradleys with polar opposite ideologies is one of several befuddling features of the current court.) There are several statutes that do discuss the office of the clerk, but this isn’t one of them. The law only demands delivery to the clerks themselves. A drop box “is set up by the municipal clerk, maintained by the municipal clerk, and emptied by the municipal clerk.” Placing a ballot in a drop box is, under any reasonable reading, delivering a ballot to the clerk.
Similarly, the majority’s declaration that only a voter may return their ballot to the clerk has no basis in law. The statute does not limit who can deliver the ballot, only how. So there is no textual reason why a voter cannot have a friend or family member do it for them.
The Teigen majority’s brazen rejection of the law’s plain language is bad enough. But Grassl Bradley went further, stuffing her opinion with paranoid and irresponsible language about the legitimacy of the 2020 election. She zeroed in on the Wisconsin Election Commission, a chief target of Donald Trump supporters who falsely claim that the WEC rigged the race for Biden. In reality, this commission is a bipartisan agency, evenly divided between Democrats and Republicans, with modest authority to interpret the state’s (often confusing) election laws.
Yet election deniers, including Trump himself, have vilified it as a rogue partisan malefactor dead set on stuffing the ballot boxes with illegal Democratic votes. This claim lies at the heart of the GOP’s probe into the 2020 race—whose lead investigator, Michael Gableman, may soon be disbarred for egregiously unprofessional and illegal conduct.
Grassl Bradley threw gas on Trump and Gableman’s fire by suggesting that the 2020 election, conducted with drop boxes pursuant to the commission’s guidance, produced illicit results. “The failure to follow election laws is a fact which forces everyone,” she wrote, “to question the legitimacy of election results. Electoral outcomes obtained by unlawful procedures corrupt the institution of voting” and “pollutes the integrity of the results.” Bradley complained that “hundreds of ballot drop boxes have been set up in past elections” and “thousands of votes have been cast via this unlawful method.” The alleged “illegality of these drop boxes weakens the people’s faith” in the election and calls “the results in question.”
She then went further: “If elections are conducted outside of the law,” she asserted, “the people have not conferred their consent on the government. Such elections are unlawful and their results are illegitimate.” The implication here could not be more obvious: The 2020 election was “unlawful,” so the results—and, specifically, Biden’s victory—are “illegitimate.”
Then Bradley drew a comparison between Wisconsin’s 2020 election and undemocratic, rigged contests in authoritarian nations. “Throughout history, tyrants have claimed electoral victory via elections conducted in violation of governing law,” she wrote, continuing:
For example, Saddam Hussein was reportedly elected in 2002 by a unanimous vote of all eligible voters in Iraq (11,445,638 people). Examples of such corruption are replete in history. In the 21st century, North Korean leader Kim Jong-un was elected in 2014 with 100% of the vote while his father, Kim Jong-il, previously won 99.9% of the vote. Former President of Cuba, Raul Castro, won 99.4% of the vote in 2008 while Syrian President Bashar al-Assad was elected with 97.6% of the vote in 2007. Even if citizens of such nations are allowed to check a box on a ballot, they possess only a hollow right. Their rulers derive their power from force and fraud, not the people’s consent.
The only silver lining of Teigen is that Justice Brian Hagedorn, the court’s conservative swing vote, declined to join this outrageous portion of Bradley’s opinion. But he did not dissent from it, either, so Bradley still spoke for a plurality of the court. Hagedorn’s restraint will be a cold comfort to Wisconsinites who will suffer from Friday’s ruling. As the dissenters pointed out, many municipalities have just one, part-time clerk with irregular hours. Inevitably, some voters will receive their ballots too close to the election to return them in the mail. Now they will have to travel to the nearest clerk (who may be miles away) when their office happens to be open. “Those who are homebound” will also suffer, as they can no longer entrust their absentee ballot to a loved one.
In truth, though, we all suffer from this decision. It is a blow to the democratic project that undermines free and fair elections while purporting to protect them. Grassl Bradley proclaimed that making voting harder somehow increases the legitimacy of the results, a baseless yet fundamental tenet of the modern Republican Party. Worse, she has signed her court onto Republicans’ lie that the results of Wisconsin’s 2020 election were “illegitimate” because they included ballots cast “unlawfully.” Her decision is a love letter to the Big Lie.
There is an understandable contempt for Democratic politicians who call on supporters to vote their way out of this crisis. But in Wisconsin, those who are still able to vote hold the solution in their hands. Next year, voters will replace the far-right Justice Patience Drake Roggensack in a judicial election. If the Democrat prevails, the court will flip to a 4–3 liberal majority. The new court could protect voting rights in 2024, expanding the franchise and endorsing the legitimacy of the results.
Three years ago, the conservative Hagedorn won his race by 6,000 votes out of 1.2 million cast. Had a few thousand more Democrats turned out, Friday’s ruling—and countless others—would have come out the other way. In 2023, Wisconsinites will have an opportunity to end Republican dominance on the court. If they fail to do so, the state’s 2024 election may be decided by a majority committed to entrenching GOP rule.
