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.

A state appeals court has reinstated the use of unmanned drop boxes for the Feb. 15 primary, ruling a change in procedures so close to an election ran the risk of causing “confusion and uncertainty” for voters.

The Madison-based 4th District Court of Appeals noted 8,398 absentee ballots had already been mailed to voters as of just before 8 a.m. yesterday, and at least 1,845 had been delivered or were out for delivery.

That means there may be voters who had already put their absentee ballots in drop boxes or given them to a spouse, caregiver or other person to return. Along with banning the use of unmanned drop boxes, Waukesha County Judge Michael Bohren’s ruling barred ballot harvesting and allowed only voters to return their ballots.

“If the current guidance is withdrawn at this stage of the election process, there is significant uncertainty as to whether these votes would be counted,” the court ruled. “Given this situation, the risk of confusion — and possible disenfranchisement — is compelling.”

According to an affidavit from Elections Commission Administrator Meagan Wolfe, the agency was aware of 430 municipalities that used 528 drop boxes in the November 2020 election. By the spring 2021 election, that was up to 570 drop boxes.

In a Jan. 13 ruling, Bohren sided with the conservative Wisconsin Institute for Law & Liberty in ordering the Elections Commission to withdraw the guidance it had provided clerks on best practices for the use of drop boxes. He originally set a deadline of Thursday for the commission to inform clerks they could no longer use drop boxes.

The commission then asked Bohren to stay his ruling, noting the proximity to the Feb. 15 primary. The agency also pointed out municipal clerks face a deadline tomorrow to deliver absentee ballots to those who requested them. Bohren rejected the request and moved up to yesterday the deadline for the commission to inform clerks of his ruling.

To meet Bohren’s ruling, the commission would have to withdraw its guidance on the use of drop boxes and agree on what new directions — if any — should be given to local clerks. Municipal clerks who have not mailed absentee ballots would then need to make the necessary changes to the instructions and then send the ballots by tomorrow’s deadline.

Based on the information available, the appeals court found it “implausible that, given this timeframe, the changes can be made without creating a high risk of inconsistent or incomplete guidance to voters.”

The appeals court found Borhen should’ve stayed his ruling while it was appealed on the merits.

The commission was set to meet this afternoon following that decision, but canceled after the appeals court issued the stay.

WILL deputy counsel Luke Berg, who argued the case, said the group is evaluating its options and is confident the circuit court ruling will ultimately be upheld.

“State law is clear on the two legal methods to return an absentee ballot: mailing it or delivering ‘in person’ to the clerk,” Berg said.

In its filing seeking the order, the commission noted it planned to file a new request by Friday seeking a stay beyond the Feb. 15 primary. In yesterday’s order, the appeals noted the commission would have to comply with Bohren’s order starting after the Feb. 15 election unless additional relief is granted.

See the decision.

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