As of July 8, 2022, Wisconsin’s Supreme Court ruled that most of the state’s drop boxes are not allowed. Eligible voters cannot have another person return their absentee ballot on their behalf. This development has huge implications for the upcoming 2022 Midterm Elections, and could drastically impact the results of election. At face value, we might jump to conclusions about the health of the United States’ democracy with worries that this ruling might inspire other states and even the federal government to place more restrictions on voting access. However, upon further analysis of the ruling and its specificities, we might find that it is more ambiguous than it appears and opens the door for more questions than it closes.
A Threat to Democracy?
In thinking about potential threats to democracy, we often refer to the concept of democratic erosion. This idea refers to the breakdown of democratic processes and traits that have become synonymous with democracies. These traits are outlined in Robert Dahl’s Polyarchy, in which he details the various characteristics of democracies and democratization. Dahl specifically asserts that the key characteristic of a democracy is the continuing responsiveness of the government to the preferences of its citizens who are considered as political equals. He then goes on to list aspects of democracy such as the right to vote and free and fair elections that are essential towards maintaining said responsiveness (Dahl, Polyarchy).
Once again, democratic erosion, or democratic backsliding as it is sometimes termed, is the phrase used to describe the breakdown of democratic regimes. Ellen Lust and David Waldner do an excellent job describing this process in their study titled, “Unwelcome Change: Understanding, Evaluating, and Extending Theories of Democratic Backsliding”. Lust and Waldner define democratic backsliding as “change … made in formal political institutions and informal political practices that significantly reduce the capacity of citizens to make enforceable claims upon the government”. The two authors also argue that often times competitive elections are undermined which results in citizens losing their right to voice their demands or mobilize, and governments becoming less able to be held accountable (Lust and Waldner).
Surely, we can interpret that voting rights and elections are key characteristics of democracies, and that the breakdown of and restrictions upon them is a sign of democratic erosion. With this in mind, is Wisconsin’s ruling against ballot drop-boxes a sign of the breakdown of democracy in the United States?
Specifics of the Ruling
In order to make a claim about the possible threat to democracy, we must first understand the specifics of the ruling made by Wisconsin’s Supreme Court. In a 4-3 decision, the court affirmed that drop boxes are not allowed in state and that absentee ballots returned in person, must be returned by the voter. The background of this case goes back to 2020, when the Wisconsin Elections Commission offered guidance to local clerks for the best practices for ballot drop boxes without staff should they decide to use them.
Justice Rebecca Bradley argued that although the WEC staff may have been simply trying to help make voting as easy as possible during the pandemic, the guidance offered may have exceeded the WEC’s authority. There is nothing within the language detailing the use and procedures of absentee ballots that allows for the use of drop boxes.
Bradley continued on to assert that, upon reading election statutes, an absentee ballot delivered in person must be delivered by the voter. She cites the phrase “in-person” which she argues “denotes ‘bodily presence’ and the concept of doing something personally” as the justification for this ruling.
What Does This All Mean?
With this understanding, we can begin to make a claim on whether or not this ruling should raise concerns about the health of U.S. democracy. While certainly this seems like a case in which voting rights were taken away and absentee voting has been made more difficult, it is important to note that Wisconsin’s ruling did not remove a previously well-established and utilized means of voting. Rather, the ruling reverted the process back to its previously held standard and practice.
Absentee ballot drop boxes were never apart of Wisconsin’s voting procedures and posed a threat in terms of opening the doors for election fraud. Unstaffed drop boxes could be an easy target for those wishing to illegally influence the results of an election. Ballots could be tampered with and changed or simply removed and destroyed so that they never reach the proper tallying sites unaltered. The ruling forces absentee voters to deliver their ballots in person to a clerk’s office. Although this may prove more tedious for some voters, it helps add another step to decrease voter fraud by ensuring voters are the only ones who have marked their ballots prior to their receival at tallying sites.
Wisconsin’s Supreme Court ruling is not a sign of democratic erosion, rather a sign that the United States is actively working to preserve its democracy by ensuring that its institutions and democratic processes remain free from tampering and fraud.
Interestingly, the question that could be asked is, has Wisconsin done enough? Although its Supreme Court uses a strictly textualist interpretation of election statutes to return voting processes to the norm, others have pointed out that did not address whether or not an absentee ballot must physically be placed in a mailbox by the voter. This again leaves the door open for election fraud. As citizens it is our duty to raise these questions and work to find effective means of voting that ensures an equal voice and opportunity for all, while preserving the veracity of the results.