Several of the Supreme Court’s liberal members suggested it was “absurd” to argue that it’s illegal for a spouse or child to place a voter’s ballot in the mailbox at the end of their driveway under Wisconsin law.

But attorney Rick Esenberg, arguing for the conservative Wisconsin Institute for Law & Liberty during oral arguments yesterday, countered it’s simply the strict construction the Legislature put into law when it allowed the privilege of voting absentee.

WILL filed a lawsuit seeking to ban the use of absentee drop boxes and only allow voters to return absentee ballots in person at their clerks’ offices or through the mail.

A key piece of the suit is the statement in Wisconsin law that absentee ballot envelopes “shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.”

Justice Rebecca Dallet challenged Esenberg on the definition of a ballot being mailed, arguing that line in state law was constructed in the passive voice and leaves room for alternatives to the elector personally being required to place a ballot in the mail.

Fellow liberal Jill Karofsky followed up by asking if Esenberg was suggesting it would be illegal for her to place an absentee ballot into an envelope, address and stamp it, walk to the end of her driveway and then hand it to her son to place in the mailbox.

“I’m sure you can appreciate how absurd that result is,” Karofsky said.

Esenberg countered it wasn’t and a distinction has to be made between what is absurd and what is overly stringent. He compared it to the Legislature requiring voters to cast votes at the polls themselves and not allowing someone else to fill out the ballot for them.

A Waukesha County Circuit Court judge earlier this year ruled state law bars the use of unmanned drop boxes and ballot harvesting, finding only voters can return their ballots. The Supreme Court earlier blocked that ruling from taking effect ahead of the February primary, but allowed it for the April election. Still, some clerks argued the ruling didn’t apply to them because they weren’t parties to the case.

The case before the justices also involves whether only allowing an elector to return a ballot in person to a clerk or by personally putting it in the mail would violate the rights of those with disabilities who may need assistance returning a ballot.

But yesterday’s oral arguments centered around whether drop boxes are allowed and what the requirements are for a voter to return an absentee ballot either in person or by mail.

Several conservatives on the court expressed skepticism over whether state law provides wide latitude over who can return a ballot.

Justice Brian Hagedorn asked Charles Curtis, an attorney for the Democratic Senatorial Campaign Committee, whether a local political party could pick up his absentee ballot and return it to the clerk. He asked if that would meet the requirement that an absentee ballot be delivered in person to a municipal clerk. Curtis answered he believed that would be legal so long as the ballot had been sealed in an envelope and wasn’t tampered with.

That prompted conservative Justice Rebecca Bradley to challenge Curtis.

“Every dictionary that I consulted for the definition of in-person said it means by one’s self or something similar,” Bradley said. “So how can it be that somebody other than the elector can deliver the ballot in accordance with the statute?”

Curtis conceded state law doesn’t expressly authorize an agent to return an absentee ballot.

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