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 Dane County judge on Tuesday expressed reservations about a lawsuit a conservative group filed over Madison’s use of private funds to purchase absentee ballot drop boxes, saying it amounted to a fishing expedition.

Dane County Judge Stephen Ehlke also likened the lawsuit filed by the Thomas More Society Attorney to a “game of whack-a-mole” because attorney Erick Kaardal continuously brings up new arguments that weren’t part of the original complaint.

Ehlke also said he would decide if Kaardal is allowed to move forward with the lawsuit and include his new arguments by mid-June at the latest.

“It seems like this stuff keeps coming at me from the plaintiff’s side,” he said. “And it’s sort of a bit like whack-a-mole. It’s just like every time something comes down that ‘oh no, what about this one?'”

Kaardal argued Ehlke should rule the Madison election workers engaged in election bribery when they accepted $50,000 from nonprofit Center for Tech and Civic Life to pay for absentee ballot drop boxes. Kaardal said election officials used that money to fund drop boxes to lead more voters to the polls, which he said was illegal.

“The Center for Tech and Civic Life gave $50,000 to Madison to pay for the absentee ballot drop boxes,” he said. “So $50,000 of private money went to pay for legally unauthorized absentee ballot drop boxes, according to Waukesha Circuit Court.”

Ehlke interrupted to point out Waukesha Judge Michael Bohren’s ruling that drop boxes are not authorized under state law came after the 2020 presidential election, when Madison implemented its drop boxes. He added it’s not possible to find illegal something that was only ruled illegal after the fact.

“But the problem there is that at the time the election occurred, there was guidance that said that the drop boxes were permitted,” he said. “And so why would there be probable cause to investigate a possible crime when the WEC is itself saying that their guidance is that [drop boxes] are okay?”

Ehlke added the Wisconsin Supreme Court is set to decide whether drop boxes are legal later this year.

Kaardal finished by saying he understands the court’s position that Madison used drop boxes relying in good faith on the WEC guidance permitting their use.

“But my client’s concern is they not be used in the next election, and I guess we’ll wait until the decision on June 30th,” he said.

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