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.