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Wisconsin Supreme Court Overrules Itself

When we were in school, we learned that the courts look at the Constitution, the law, and facts and then come to a conclusion. Sad to say, that is not how it works. The courts look at what the Republicans want, what the Democrats want, and then make the call, based on the partisan composition of the court in question. And it is not only the U.S. Supreme Court.

As evidence, we present to you the Wisconsin Supreme Court. In 2020, at the height of the pandemic, many states greatly expanded the use of absentee ballots and also the use of drop boxes. The latter was so voters could cast their absentee ballots by driving up to a drop box, getting out of their cars to deposit the ballots there, and then hightailing it home, without contacting any potentially infected other people. In Wisconsin, Republicans sued, saying that drop boxes were not protected 24/7, so there could be ballot stuffing at 3 a.m., ignoring the minor detail that each envelope must bear the correct signature of an eligible voter. In July 2022, the Wisconsin Supreme Court ruled 4-3 that drop boxes were not allowed outside election offices. Republicans cheered.

On Friday, the Wisconsin Supreme Court overturned its own decision of only 2 years ago by a vote of 4-3. The Court decided that the Court made a boo-boo in 2022 and that needed to be corrected now. In the decision, the Court noted that Wisconsin law states that absentee ballots must be mailed back or returned in person, but the law doesn't specify what locations the ballot can be returned to. Nowhere does it say that ballots must be returned to the county clerk's office. Absent a specific directive like that, it reasoned that the Wisconsin State Elections Commission had the authority to decide where ballots could be returned. And it said official drop boxes are fine.

How come the switcheroo? It's simple, the composition of the Wisconsin Supreme Court has changed since 2022. One of the conservatives has been replaced by a liberal. That changed the majority. Some Republicans said that the Court ought to have accepted "stare decisis" and left the old ruling in place, but given the U.S. Supreme Court's recent decision to throw the 40-year old Chevron case out of the window (not to mention the Dobbs decision, of course) because, well, they didn't like it, that is a pretty weak argument.

Will Republicans appeal to the U.S. Supreme Court? They might, but there are two arguments against this. First, this case hinges entirely on Wisconsin state law and the Supreme Court doesn't like to get involved in state-law cases unless there is a clear U.S. constitutional issue involved. The mechanics of how Wisconsin conducts its elections doesn't seem to fit. Second, Republicans have now done an about-face and are encouraging absentee voting. Does the Court want to get in the way? It might not and could deny cert if an appeal is made. (V)

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