A new ballot collection box has been installed outside of Madison Fire Department Station #4, on Monroe Street, on Friday, October 16, 2020. The City of Madison Clerk’s Office is installing 14 secure ballot drop boxes outside of fire stations and at the Elver Park shelter. Photo by Ruthie Hauge, Capital Times

Declaring the Elections Commission’s rulemaking and policy authority in “disarray,” GOP guv candidate Rebecca Kleefisch is asking the Supreme Court to declare the agency’s guidance on drop boxes and special voting deputies conflicts with state law.

The suit filed Monday urges the Wisconsin justices to take the case without first making it go through the lower courts, arguing there isn’t enough time ahead of the 2022 election for the usual legal process.

Kleefisch also cited a recent Legislative Audit Bureau report that recommended the commission put previously issued guidance through the administrative rules process, which would give the GOP-controlled Legislature oversight of the proposals. It also points to the Racine County sheriff recommending felony charges against five commissioners over their votes on suspending a requirement that special voting deputies visit an assisted care facility at least twice before absentee ballots are sent to residents who request them.

“The time to correct election requirements is now,” the suit urges before later declaring, “Without timely intervention by this Court, the role of WEC in ensuring a fair and impartial 2022 election is in doubt.”

State Dem Party spokeswoman Kaylan Anderson said the guv candidate has encouraged Republicans to “hire mercenaries” to engage in ballot harvesting next year and wouldn’t rule out overturning the results of an election.

“This absurd lawsuit is just another example of Rebecca Kleefisch attacking our democracy to raise money for a brutal primary where she’s already facing criticism from her own party,” Anderson said.

The suit seeks:

*a declaration that Elections Commission guidance on the use of unattended drop boxes is contrary to state law and must be enacted through the administrative rulemaking process, which gives the GOP-controlled Legislature oversight of such policies.

The Elections Commission in August provided local clerks guidance on the use of drop boxes to collect absentee ballots. Other lawsuits over the 2020 election raised the issue as well, but were rejected on various grounds. The Legislative Audit Bureau in its review of the 2020 election found the use of drop boxes was neither allowed nor barred under state law and recommended the Elections Commission issue its guidance on them through the administrative rules process.

*a declaration the Elections Commission’s guidance on special voting deputies violates state law and must be enacted through the rulemaking process. With assisted care facilities denying special voting deputies entrance due to COVID-19, the commission suspended the requirement that clerks send them twice before sending absentee ballots to ensure residents had adequate time to receive the ballots and send them back.

The commission this spring began the process of creating administrative rules on the use of special voting deputies during a pandemic. But the agency allowed the scope statement to expire because there were no more elections planned in 2021.

*a declaration the commission’s guidance on consolidating polling places is contrary to state law and must be enacted through administrative rulemaking.

Polling places must be established at least 30 days before an election. But in March 2020, the commission told clerks they could consolidate polling places without the approval of others due to the pandemic. Milwaukee and Green Bay significantly reduced the number of polling sites in the spring 2020 election, leading to long lines and lengthy delays that April.

The court has been hesitant to take original jurisdiction in various election-related lawsuits. There’s also already a suit pending in Waukesha County Circuit Court that the conservative Wisconsin Institute for Law & Liberty filed seeking to bar the use of drop boxes to collect absentee ballots.

Read the suit here.

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