Recount Confirmed Results Incorporating Votes Cast Under Subsequently Invalidated Drop-Box Guidance (WI)

The Wisconsin Elections Commission issued administrative guidance memoranda in spring 2020 and on August 19, 2020, authorizing unstaffed ballot drop boxes as a permissible method of absentee ballot return. These memoranda were subsequently held by the Wisconsin Supreme Court in Teigen v. Wisconsin Elections Commission, 2022 WI 64, No. 2022AP91 (Wis. July 8, 2022), to be legally invalid on the ground that ballot drop boxes are illegal under Wisconsin statutes — specifically, that only two lawful methods of absentee ballot return exist under Wis. Stat. §6.87(4)(b)1., and an inanimate drop box satisfies neither. The court declined to address whether the guidance documents constituted unpromulgated administrative rules, resting its holding on statutory illegality alone; the circuit court below had additionally declared the memos invalid as unpromulgated rules under Chapter 227. The 2020 presidential recount — conducted in Milwaukee and Dane Counties only — confirmed and locked in vote totals that included ballots returned through these unlawfully authorized drop boxes. Wisconsin Stat. §6.84(2) provides in mandatory terms that “ballots counted in contravention of the procedures specified in [absentee ballot statutes] may not be included in the certified result of any election.” The recount, by re-confirming results that included these ballots, incorporated totals that a subsequent court ruling established were cast in a manner having no statutory authorization. Justice Rebecca Grassl Bradley, joined by two other justices in the relevant portion of the Teigen opinion, wrote that Trump v. Biden, 394 Wis. 2d 629 (2020 WI 91), had allowed notions of equity to override mandatory statutory language — specifically, that the Trump v. Biden majority had refused to invalidate ballots cast through unlawfully authorized procedures by invoking laches rather than enforcing §6.84(2)’s mandatory terms. The recount process had no mechanism to exclude or identify drop-box ballots from the totals it was re-confirming, as ballot anonymity makes it impossible to trace a counted ballot to its method of return once separated from its envelope.