Established Fact
The WEC issued a memo on August 19, 2020 — signed by Administrator Meagan Wolfe and her assistant administrator, but never voted on by the Commission — authorizing unstaffed absentee ballot drop boxes in contravention of then-existing Wisconsin law. The Wisconsin Assembly’s Office of the Special Counsel (OSC) documented that this guidance was distributed without a majority vote of the Commission at a publicly noticed meeting, as required by Wis. Stat. § 5.05(1e) and § 5.05(5s)(a), and without going through the administrative rulemaking process required by Chapter 227. The Wisconsin Supreme Court independently confirmed that “WEC commissioners never voted on Memo two either,” and held that WEC’s authorization of ballot drop boxes was unlawful. The memos were declared invalid and the Commission was permanently enjoined from issuing further guidance in conflict with Wis. Stat. § 6.87(4)(b)1. The OSC further concluded that CTCL’s agreement with the five cities for the $216,500 in drop box funding “was also unlawful and contrary to public policy,” given that the WEC guidance that ostensibly authorized those drop boxes lacked lawful administrative authority.
Citations
WEC, “Absentee Ballot Drop Box Information,” dated August 19, 2020, signed by Administrator Meagan Wolfe and Assistant Administrator Richard Rydecki (the “August 2020 WEC Memo” or “Memo Two”). The memo states: “Ballot drop boxes can be staffed or unstaffed, temporary or permanent” and includes a dedicated section titled “Unstaffed, 24-Hour Ballot Drop Box.” The memo was directed to “All Wisconsin Election Officials.” Primary source preserved as Exhibit B to the Teigen litigation and filed with the U.S. Supreme Court: https://will-law.org/wp-content/uploads/2021/06/Exhibit-B-WEC-August-2020-Drop-Box-Memo.pdf. Also at: https://www.supremecourt.gov/opinions/URLs_Cited/OT2020/20A66/20A66-6.pdf.
Office of the Special Counsel (Wisconsin State Assembly), Second Interim Investigative Report on the Apparatus & Procedures of the Wisconsin Elections System, March 1, 2022, p. 44: “Wisconsin law requires that actions taken by WEC be accomplished by a majority vote, at a publicly noticed meeting. Wis. Stat. § 5.05(1e); Wis. Stat. § 5.05(5s)(a). Yet WEC… has impeded this investigation through obstructive litigation carried on without any record of an approval by the majority of the Commission at a public meeting of the Commission.” Id. at pp. 44–45: “[N]ew election related polices were spread throughout the state (such as the expanded use of unlawful ‘drop boxes’…) without having been approved by either the administrative rule-making process… or by receiving a majority vote of the Commission.” Available at: https://legis.wisconsin.gov/assembly/22/brandtjen/media/1552/osc-second-interim-report.pdf.
Teigen v. Wisconsin Elections Commission, 2022 WI 64, ¶7 (Wis. July 8, 2022): “A few months later, Administrator Wolfe and the assistant administrator issued the second document (‘Memo two’) ahead of the fall 2020 election. It encourages ‘creative solutions’ to facilitate the use of ballot drop boxes… WEC commissioners never voted on Memo two either.” Majority holding at ¶87: “WEC’s authorization of ballot drop boxes was unlawful.” Full opinion: https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=542617.
OSC Second Interim Report, March 1, 2022, Chapter 6, p. 80: “Accordingly, the Zuckerberg 5’s privately funded absentee ballot drop boxes in the 2020 election were unlawful under Wis. Stat. § 6.87(4)(b)1 and § 6.855. Thus, the Zuckerberg 5 and CTCL’s agreement for CTCL-funded purchase and placement of absentee ballot drop boxes was also unlawful and contrary to public policy.” https://legis.wisconsin.gov/assembly/22/brandtjen/media/1552/osc-second-interim-report.pdf.
2023 Wisconsin Assembly Resolution 18 (AR18), Article 4, introduced November 2, 2023: “Ballot drop boxes were unfamiliar in Wisconsin before the 2020 presidential election cycle. Their use was mandated for the state’s five largest cities through contracts signed with the ‘Center for Tech and Civic Life’ (CTCL)… Administrator Wolfe fully supported and promoted the use of these unauthorized drop boxes by issuing a series of memoranda (prepared by WEC staff under her supervision) to municipal clerks. This endorsement and promotion of ballot drop boxes ran counter to Wisconsin law, as highlighted in the Teigen case.” Available at: https://docs.legis.wisconsin.gov/2023/related/proposals/ar18.