Liberal Justice Jill Karofsky suggested the court’s 2022 ruling barring the use of absentee ballot drop boxes was ripe for reversal because its conclusion was “egregiously wrong,” its reasoning was exceptionally weak and the consequences have been damaging.

“What if we just got it wrong?” Karofsky asked during oral arguments Monday. “What if we made a mistake? Are we supposed to perpetuate that mistake in the future?”

Meanwhile, conservative Justice Rebecca Bradley pushed back on those who suggested the court was wrong to rule two years ago drop boxes aren’t allowed because state law doesn’t expressly authorize them. Bradley, who wrote the 2022 decision, pressed those seeking to overturn the ruling on what restrictions — if any — local clerks would face on collecting ballots if they are successful. 

“What is the restriction? A cardboard box? A van that goes around and picks up ballots?” Bradley asked. “What is the limiting principle?”

At the heart of today’s arguments was whether the justices need to stand by the ruling issued two years ago, when the court had a 4-3 conservative majority rather than the 4-3 edge that now exists for liberals. Several liberal justices peppered the attorney for GOP lawmakers on why they should stick to the previous decision if it was flawed. Meanwhile, the conservative members of the court took issue with the criticism of that past decision.

Since the 2022 case, liberal Justice Janet Protasiewicz has joined the court, flipping ideological control. The other three liberals on the court — justices Ann Wash Bradley, Rebecca Dallet and Karofsky — all dissented two years ago, believing drop boxes were allowed. All three conservatives still on the court — justices Rebecca Bradley, Brian Hagedorn and Annette Ziegler — were part of the majority that ruled they were barred.

Protasiewcz noted during oral arguments that the GOP-controlled Legislature didn’t intervene in the 2022 case and previously had taken the position that the law authorized drop boxes, assured federal and state courts that local election officials have discretion to use drop boxes, and promoted them as safe and secure.

Misha Tseytlin, representing GOP lawmakers, told justices the Legislature’s view changed after the 2022 ruling. He also argued for the principle of stare decisis — that courts are bound by precedence — to have any meaning, the justices must uphold their past interpretation that state law doesn’t allow drop boxes.

Tseytlin added he’s unaware of any case in the history of the Wisconsin or U.S. supreme courts where “no new legal arguments were presented, no factual developments were presented and no claims of laws changed and yet the meaning of the statute was changed.”

He called the differences between the majority ruling and dissent in the 2022 case “a reasonable disagreement among justices of good faith” that doesn’t warrant reversal.

But Karosky countered that the ruling has had negative consequences that make it unworkable. She noted more than 1,600 absentee ballots arrived at clerk’s offices after election day in 2022 and weren’t counted. By comparison, 689 ballots arrived after the deadline for the 2020 election even though twice as many people voted absentee that fall.

Conservatives on the court took issue with the argument that the 2022 ruling put in place a standard that state law has to expressly authorize an election practice for it to be legal.

David Fox, representing the group that sued seeking to overturn the 2022 decision, noted other lawsuits have been filed challenging election practices based on the court’s ruling two years ago. That, he argued, opened the door to lawsuits seeking to overturn election results.

“If everything needs to be expressly authorized on pain of discarding ballots, that is a loaded gun,” Fox said. 

Rebecca Bradley countered plaintiffs were asking the court to be a “super Legislature” and give “free rein to municipal clerks to conduct elections however they see it.”

“That, counsel, to me seems to be the true danger to democracy,” she said.

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