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Culture War Roundup for the week of July 1, 2024

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Today in weird election arguments, Wisconsin has an ongoing dispute about the legality of ballot drop boxes and with a shift in Supreme Court seats, there is a big stare decisis is for suckers revisiting of it:

The 4-3 decision released Friday reverses a near-total ban on ballot drop boxes, which was handed down by the state's high court in 2022.

In 2022, the Wisconsin Supreme Court concluded in another 4-3 ruling that unsupervised ballot drop boxes outside of clerk's offices are illegal, because they're not specifically authorized in Wisconsin law.

I have my usual objections to encouraging more absentee voting, but they're not the point from a legal perspective. Instead, let's just look at the actual statute:

Except as otherwise provided in s. 6.875, an elector voting absentee, other than a military elector or an overseas elector, shall make and subscribe to the certification before one witness who is an adult U.S. citizen. A military elector or an overseas elector voting absentee, regardless of whether the elector qualifies as a resident of this state under s. 6.10, shall make and subscribe to the certification before one witness who is an adult but who need not be a U.S. citizen. The absent elector, in the presence of the witness, shall mark the ballot in a manner that will not disclose how the elector's vote is cast. The elector shall then, still in the presence of the witness, fold the ballots so each is separate and so that the elector conceals the markings thereon and deposit them in the proper envelope. If a consolidated ballot under s. 5.655 is used, the elector shall fold the ballot so that the elector conceals the markings thereon and deposit the ballot in the proper envelope. If proof of residence under s. 6.34 is required and the document enclosed by the elector under this subdivision does not constitute proof of residence under s. 6.34, the elector shall also enclose proof of residence under s. 6.34 in the envelope. Except as provided in s. 6.34 (2m), proof of residence is required if the elector is not a military elector or an overseas elector and the elector registered by mail or by electronic application and has not voted in an election in this state. If the elector requested a ballot by means of facsimile transmission or electronic mail under s. 6.86 (1) (ac), the elector shall enclose in the envelope a copy of the request which bears an original signature of the elector. The elector may receive assistance under sub. (5). The return envelope shall then be sealed. The witness may not be a candidate. The envelope shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots. [emphasis mine] If the envelope is mailed from a location outside the United States, the elector shall affix sufficient postage unless the ballot qualifies for delivery free of postage under federal law. Failure to return an unused ballot in a primary does not invalidate the ballot on which the elector's votes are cast. Return of more than one marked ballot in a primary or return of a ballot prepared under s. 5.655 or a ballot used with an electronic voting system in a primary which is marked for candidates of more than one party invalidates all votes cast by the elector for candidates in the primary.

To fulfill that clause and allow remote ballot drop boxes, the new court would need to discover that these remote drop boxes are actually the municipal clerk. That might sound like a stretch, but they're willing to enact the labor:

¶25 By mandating that an absentee ballot be returned not to the "municipal clerk's office," but "to the municipal clerk," the legislature disclaimed the idea that the ballot must be delivered to a specific location and instead embraced delivery of an absentee ballot to a person——the "municipal clerk." Given this, the question then becomes whether delivery to a drop box constitutes delivery "to the municipal clerk" within the meaning of Wis. Stat. § 6.87(4)(b)1.

¶26 We conclude that it does. A drop box is set up, maintained, secured, and emptied by the municipal clerk.10

This is being characterized as a big win for democracy. To be clear, I don't really think there's anything going on here that's a problem or poses a threat, but it just remains very weird to me how there are all these arguments in favor of doing weird things that don't really seem necessary with solutions in search of a problem. What exactly is the situation where someone can't drop a ballot in the mail or swing by the clerk's office? Why is it so critical to Our Democracy^tm that there be more drop boxes? I suppose one could easily ask the same of Republicans, wondering why it's so critical that clerk's offices not put out boxes, but it seems like the simple answer in this case is simply that the statute pretty obviously doesn't allow it.

I mean, I sort of have the same argument that I do for dentists - clerks, especially government ones, generally have workday hours at best. Most working people are, uh, also at work at those times. Few people either can or want to leave work just to drop off a ballot. Thus, accessibility to voting to basically a massive portion of the population (plus the ones we kind of want to vote in the first place) is obviously a big deal. Drop boxes neatly solve this issue by allowing consolidation with other errands, often conveniently done before or after work, and without relying on the capricious hours of government employees who keep their own annoying hours more out of selfish desire rather than a true desire to serve the people their job is to serve. This is more understandable for dentists, who really want to get paid more than to help people, but less understandable for government agents, whose entire purpose is to help people, which makes one wonder why they are often so bad at it.

But at what costs? Seems like drop boxes open up ballot harvesting.

Also maybe voting should be moderately hard. If our elections are important, maybe citizens should have to undertake a modicum of effort to vote.

Most people are fairly law-abiding and reasonable. Especially when it comes to elections, we aren't in the midst of Gilded age party machine shenanigans. Regular people are fairly likely to give ballots to a trusted family member to drop off, and that's fine. Some ballot harvesting laws make this illegal, which is dumb. They are already less-likely to give these ballots to some partisan (or non-partisan) rando to drop off. That's a strong natural disinclination. I'd argue there's already a strong disincentive for abuse in place due to that alone. And if states pass laws making this kind of non-casual ballot harvesting illegal, as is their right, I think it would be very effective. Really, our model for abuse is that organized groups do organized bad things to ballots. So it's not only unlikely, but also easily preventable. Some states might also want to codify some sort of official or semi-official ballot harvester, and I think that would be a bad idea, but it's not a flagrantly bad idea, depending on implementation.

"Voting should be hard" is, like, maybe fine as an idea, but in practice it's extremely vulnerable to various kinds of unethical voter suppression efforts. It's more fair and more just for everybody to simply keep voting on the easy side. Just like how we have a long history of arguments like "only landowners can vote". Some of those arguments were even half-decent! But at the end of the day, a government is by the people, for the people, and so a person is a person and a person should be able to vote. Social contract, and all that. Governments should represent their people, even if we might not want them to. That's just what's fair and natural. And (IMO) desirable, but that's just a bonus.

I agree with you in general, but when people say that widespread voter fraud ended in the Gilded Age, I am reminded of Robert Caro's magnificent biography of Lyndon Johnson. His 1948 election to the Senate was characterized by massive fraud - which was in fact the norm in Texas at that time , complete with jeffes telling their underlings how to vote (and supervising the votes to make sure they did it correctly), ballots collected by party apparatchiks, and illegals shipped across the border to vote en masse.

Voter fraud really isn't some hypothetical bogey man that's a relic of ancient times. Our elections are probably a lot cleaner today than in the 1940s and 1950s, but the potential and the motivation is most definitely still out there.

Fair point. Not saying it ended precipitously, just was giving a contrasting example, though most numbers I’ve seen do indicate a low rate over recent decades. Worth noting that locale might make a difference. New Jersey, for example, might need some very strong fraud laws in a way that Oregon might not.