Democratic law firm argues mail boxes ‘unsecure’ for voting, in suit pushing for ballot drop boxes

Marc Elias, whose law firm filed the lawsuit, advocated for states to switch to mail-in voting because of the COVID-19 pandemic in March 2020.

Published: July 25, 2023 6:13am

Updated: July 25, 2023 12:20pm

In a lawsuit to overturn a Wisconsin Supreme Court ruling that concluded ballot drop boxes are illegal, a Democratic election law firm is now arguing that U.S. Postal Service mailboxes are in fact “unsecured.”

The state's high court ruled last year, in a 4-3 decision, the Wisconsin Elections Commission was not authorized to allow the use of the such boxes, as alternative balloting, during the 2020 presidential election.

The majority opinion was based on the interpretation of state rules and considered a loss to liberals who largely support the method. 

"Only the legislature may permit absentee voting via ballot drop boxes," the court said. "WEC cannot. Ballot drop boxes appear nowhere in the detailed statutory system for absentee voting. WEC's authorization of ballot drop boxes was unlawful."

However, this past April, then-Milwaukee County Circuit Court Judge Janet Protasiewicz won the election for the vacant seat on the Wisconsin Supreme Court, flipping it to a liberal majority.

And now, the Elias Law Group is suing the commission on behalf of Priorities USA, the Wisconsin Alliance for Retired Americans and a voter over the ruling against ballot drop boxes.

The group's stated mission in part reads: "Committed to helping Democrats win, citizens vote, and progressives make change."

The lawsuit challenges the commission now allowing voters to return their absentee ballots only via mail or by dropping it off at a polling place or central count location.

In addition, it challenges the state requirement that voters have a witness when filling out an absentee ballot, as well as the Election Day deadline for voters to cure their absentee ballot envelopes, and the fact that absentee voting is called a “privilege” in state law rather than a “right.”

In the legal filing, the firm also appears to argue drop boxes are more secure than mailboxes.

“By restricting Wisconsin voters’ options for returning their absentee ballots and having those ballots properly counted, the Drop Box Prohibition severely burdens the right to vote,” the filing states. “Without the opportunity to drop off their absentee ballots at drop boxes, voters must instead rely on the U.S. Postal Service – and its unsecured mailboxes – to deliver their absentee ballot and simply hope that the ballot arrives by election day.”

Elias Law Group was started in 2021 by Democratic election lawyer Marc Elias, who in March 2020 advocated for states to switch to mail-in voting because of the COVID-19 pandemic.

“It will not be enough for states to simply allow more citizens to vote by mail [original emphasis]. Each state must also provide adequate resources for the printing and distribution of millions of extra ballots and to support with extra funds the officials who are tasked with processing and counting the flood of mailed ballots,” Elias wrote in a March 2020 op-ed for the Washington Post.

“Most important, for this system to work, states must be prepared to process and count the avalanche of ballots that will be postmarked by Election Day but arrive at election offices in the days afterward,” he also wrote.

Earlier this month, Elias tweeted a Post article titled, "Republicans plan efforts to tout early voting tactics they once vilified." Elias captioned the tweet, "Republicans are still vilifying early voting and vote by mail. Forget the GOP's press releases. Look at the bills the are passing and the lawsuits they are filing."

Elias Law Group didn’t immediately respond to a request for comment on Monday.

Ballot drop boxes became popular during 2020 for absentee voting, as all but 10 states allowed them for the presidential election. 

However, critics have raised such concerns with the process as the potential for fraudulent ballots being submitted, chain of custody issues and ballot harvesting.

Georgia Republican state Sen. Butch Miller said over a year after the 2020 election that he believed the drop boxes were too ripe for abuse and should be eliminated.

"Drop boxes were introduced as an emergency measure during the pandemic, but many counties did not follow the security guidelines in place, such as the requirement for camera surveillance on every drop box," Miller said.

He has also called ballot drop boxes "the weak link when it comes to securing our elections against fraud.”

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