Acceptance of Certification Based on Drop Boxes Subsequently Ruled Illegal by Wisconsin Supreme Court (WI)

Wisconsin’s presidential certification – accepted by Congress on January 7, 2021 – was built in part on ballots cast through drop boxes authorized only by unpromulgated Wisconsin Elections Commission (WEC) administrative memoranda issued in March and August 2020. The Wisconsin Supreme Court, in Teigen v. Wisconsin Elections Commission, No. 2022AP91 (July 8, 2022), subsequently held those memoranda to be legally invalid administrative guidance without the force of law, and that ballot drop boxes are “illegal under Wisconsin statutes.” Wisconsin Stat. §6.842 mandates that ballots cast in contravention of specified absentee procedures “may not be included in the certified result of any election.” The Special Counsel’s investigation confirmed the Wisconsin Legislature retained plenary authority under Article II to decertify the election. The certification Congress accepted therefore included a legally determined quantity of ballots cast under procedures ruled unlawful by the state’s own Supreme Court.