MADISON, Wisc. — The new liberal majority of the Wisconsin Supreme Court on Monday questioned its conservative members’ past decision to bar state clerks from using absentee ballot drop boxes in a case that could impact turnout in a key swing state this November.

Wisconsin’s highest court heard arguments Monday in a lawsuit backed by Democrats that seeks to overturn the court’s decision under its previous conservative majority that said state law does not allow drop boxes to be placed outside of an election clerk’s office and another ruling that prohibited clerks from filling in missing address information on absentee ballots.

“What if we just got it wrong?” said Justice Jill Karofsky, one of four members of the court’s liberal majority, referring to the court’s prior decision. “What if we made a mistake? Are we now supposed to just perpetuate that mistake into the future?”

The Wisconsin court in the coming weeks will decide whether to reinstate the use of absentee drop boxes, just before voters are set to cast ballots in the next presidential election featuring a rematch of President Joe Biden and former President Donald Trump.

Biden defeated Trump in Wisconsin by about 21,000 votes four years ago. Since then, Trump has sought to persuade lawmakers and judges to overturn the battleground state’s election result and in doing so, argued ballots returned in drop boxes amounted to voter fraud despite a lack of evidence to support the claim.

Critical tool for elections in 2020. Why are some states limiting drop boxes?

‘Not something you were obviously concerned about at all in 2020’

Ballot drop boxes had been used since the 1980s or 1990s in Wisconsin and other states but exploded in popularity during the coronavirus pandemic — especially in liberal-leaning areas — to help voters cast ballots while limiting interaction with other people.

On Monday, the court’s liberal justices questioned the court’s 2022 decision to ban the boxes, with some arguments focusing on the state Legislature’s past statements of support for their use.

“This was not something you were obviously concerned about at all in 2020 when you said that these boxes were expressly authorized and lawful,” Justice Rebecca Dallet said Monday to an attorney representing Republican legislative leaders, who are in court defending the 2022 ruling outlawing drop boxes against the challenge brought by liberal group Priorities USA and the Wisconsin Alliance for Retired Voters.

“At that point in 2020 no one had raised any legal objections to drop boxes,” Misha Tseytlin, an attorney representing the Legislature, said in response.

Conservative Justice Brian Hagedorn questioned why past policy positions mattered to the justices’ work on interpreting the law.

“We’ve had parties change their positions very recently in this court and other people haven’t been troubled by that — why does it matter that the Legislature takes a different view of the statute for us to read the statute faithfully?” Hagedorn said.

Drop boxes and state law

According to the National Conference of State Legislatures, some states have added language about drop boxes to state law. Many include standards about how many drop boxes must be available, based on population, or require one per county.

The plaintiff’s arguments amounted to asking the Wisconsin Supreme Court to become lawmakers, argued conservative Justice Rebecca Bradley.

“You are asking this court to become a super Legislature and give free rein, despite what the statutes say, give free rein to municipal clerks to conduct elections however they see fit,” she said. “That, counsel, seems to me to be the greater danger to democracy because you’re asking this court to override what the Legislature wrote.”

Critics say drop boxes aren’t laid out in state law and that lawmakers, not the state elections commission, must create rules for them. Supporters say clerks have wide authority and discretion over what tools should be used to administer elections in their communities, an argument at least one liberal justice echoed Monday.

In spring 2021, there were about 570 drop boxes in Wisconsin, according to court filings. Out of Wisconsin’s 72 counties, at least 66 had drop boxes as of spring 2021, PolitiFact Wisconsin noted.

While Republicans have heavily scrutinized the use of drop boxes, they were used widely in Wisconsin, including in conservative areas.

If the Wisconsin court allows expanded use of drop boxes again, some cities with remaining drop box infrastructure may be able to open them back up quickly. Madison City Attorney Michael Haas said, for Madison, it would be a matter of unlocking the box and likely double-checking the video security.

Contributing: Hope Karnopp, Milwaukee Journal Sentinel

Contact Molly Beck at molly.beck@jrn.com.

About two thirds of Wisconsin is under an air quality advisory due to smoke from Canadian wildfires, according to the state’s Department of Natural Resources. 

A map from the DNR shows much of central Wisconsin has air quality considered “unhealthy for sensitive groups,” including people with heart or lung disease, older adults and children. 

Eau Claire and Marathon counties have air quality considered unhealthy for everyone, according to the map. 

The advisory is expected to expire at midnight. 

This is the first air quality advisory of the season, and it comes about a week earlier than last year. In 2023, Canadian wildfire smoke spurred the most air quality advisories Wisconsin had seen in more than a decade. 

DNR Air Management Program Outreach Coordinator Craig Czarnecki told WPR that before last year, it had been about a decade since the state issued an advisory regarding wildfire smoke during the spring. 

“It’s been quite a while since we’ve seen impacts like this in the spring. That’s two springs here in a row,” Czarnecki said. 

It remains too early to tell if we will again see intense episodes of orange skies and the persistent smell of smoke that blanketed much of the state last summer. The haze got so thick last June the state issued its first “very unhealthy” advisory.

“One thing we do know right now is much of Canada does remain in those drought conditions, including some areas of extreme drought which is where some of those fires are located up in British Columbia right now,” he said. 

Canada had 145 active fires burning on Monday, according to the Canadian Interagency Forest Fire Centre.

“What happened is presumably the wildfires that were going on in Canada might not have been fully put out by their snowpack, and so they can reinvigorate in the springtime,” said Marcia Cronce, a meteorologist with the National Weather Service in Milwaukee. 

“If you are able to view the sun, you’ll notice that it’s kind of a milky appearance in the sky in a little bit of filtered sunshine. It might appear a little bit more orange,” she said. 

The DNR issues air advisories when levels of tiny particles or ozone in the lower atmosphere reach unhealthy levels. 

Eau Claire has an Air Quality Index of 152, while Marathon is at 175, according to the DNR’s map. The higher that number, the more dangerous conditions are. The United States Environmental Protection Agency says an Air Quality Index of 101 to 150 can be unhealthy for those with some health conditions,  while 151 to 200 is unhealthy for the general public.

“We have a little bit higher concentrations of particulate matter and that can irritate people that are susceptible to problems like asthma or heart or lung disease, older adults or children,” Cronce said. “So try to stay indoors if you fall into that category.” 

Czarnecki said N95 masks can also help limit some of the impacts from wildfire smoke. The DNR has a website devoted to air quality resources. 

Central and northern Wisconsin are under an air quality advisory due to Canadian wildfire smoke, according to the National Weather Service in Sullivan.

In those portions of the state, people can see smoke in the sky, and in some areas, on ground level, said Mark Gehring, NWS meteorologist.

Visibilities are ranging from 4 to 7 miles in parts of west central and northern Wisconsin, as well as southern Minnesota, Gehring said.

“That’s from the smoke from the Canadian fires that flared back up now that spring has come,” he said. “And, those fires are kind of on the border of British Columbia and Alberta — the northern part of those provinces, so way up in northwest Canada.”

“People with heart or lung disease, older adults, and children should avoid prolonged or heavy exertion; everyone else should reduce prolonged or heavy exertion,” the advisory said.

The smoke could cause breathing issues for sensitive groups, Gehring explained. He recommended that sensitive groups in the effected areas should stay indoors as much as possible with their windows closed and limit time outside.

“Even for healthy people, if the concentrations get severe, you could have some effects from it,” he said.

While the advisory — which began Sunday afternoon — is set to expire at 10 a.m., Gehring anticipates that another will be issued. The state’s Department of Natural Resources will make that call after reassessing the situation.

With the smoke “really slowing down as it approaches southern Wisconsin,” Gehring didn’t expect it to reach the Milwaukee area Monday.

“Maybe a little bit tomorrow, but it may be just an upper atmosphere, too,” he said. “If it stays in the mid or upper levels of the atmosphere, then nobody’s effected by it. You’ll still see it in the sky, but it won’t effect ground level. That’s when there’s a bigger problem.”