WEC Agency Memos Functioning as Press Releases to Preempt Legislative Review (WI)

The Wisconsin Elections Commission (WEC) utilized public memoranda – issued in March and August 2020 – to unilaterally authorize absentee ballot drop boxes statewide, bypassing the legislature and the formal administrative rulemaking process required under Wis. Stat. §227.40. By broadcasting these memoranda publicly and to media outlets, WEC created a false public consensus that drop boxes were legally authorized under Wisconsin law. This narrative – amplified through media coverage – went unchallenged through the certification period. The Wisconsin Supreme Court subsequently held in Teigen v. WEC, No. 2022AP91 (July 8, 2022), that the drop box memoranda had no legal force and that the drop boxes were illegal under Wisconsin statutes. During the certification period, however, the media-disseminated narrative of legal authorization prevented any public or legislative challenge to the drop-box ballot chain of custody.