Delaware and Wisconsin Supreme Courts Protect Ballot Access

In two closely watched election cases, state supreme courts recently ruled to safeguard access to the ballot, with Wisconsin’s reinstating the use of ballot drop boxes and Delaware’s upholding a 2019 law that allowed early in-person voting. The lawsuits are two of many across the country where conservative groups and politicians seek to limit or overturn efforts to make voting more convenient. 

This month, the Wisconsin Supreme Court reversed the state ban on the use of absentee ballot drop boxes, offered in many states as an option for returning absentee ballots during the early voting period and on Election Day. The challenged ban was a result of a 2022 Wisconsin Supreme Court opinion in a case brought by conservative group Wisconsin Institute of Law and Liberty. The court in 2022 found that a Wisconsin law requiring a voter to personally deliver their absentee ballot either in person or via the mail to the municipal clerk could not mean delivery to “an inanimate object” like a ballot box.

The 2022 court had a 4–3 conservative majority. After a high-profile election last year that broke spending records, the court flipped to a 4–3 progressive majority.

In the decision in Priorities USA v. Wisconsin Election Commission, brought by a progressive group, the court said that the 2022 opinion was “unsound.” While municipal clerks are not required to use drop boxes, the court explained, it is within their “statutorily-conferred discretion” to use them if they choose.

A conservative group brought a similar case in Arizona last year, seeking to outlaw the use of drop boxes. About 75 percent of Arizona voters are signed up for early no-excuse voting by mail. A judge dismissed that lawsuit in April.

Measures providing voters with flexibility for when they can cast their ballot, like early in-person and absentee voting, are also the subject of litigation. The Delaware Supreme Court ruled late last month in Albence v. Mennella that the state could offer early in-person voting in the 2024 election, dismissing a claim that the 2019 law mandating it violated the state constitution. The court also rejected a challenge to a 14-year-old law that allows permanent absentee voter status for those who qualify.

The Delaware constitution specifies that the “general election shall be held biennially on the Tuesday next after the first Monday in the month of November.” The plaintiffs — a Republican state senator and an election worker represented by self-described “election integrity” firm Public Interest Legal Foundation — claimed that that language precludes early in-person voting by limiting general election voting to Election Day specifically.

The state argued that the U.S. Supreme Court has defined “election” as the final, collective selection of voters, which happens after polls close on Election Day. As such, they said, “early-voting laws are entirely consistent with provisions establishing a single election day.” Forty-six other states, Delaware pointed out, allow early voting. Thirteen of those states — most of which have similar state constitutional language setting Election Day — and Washington, DC, filed an amicus brief urging the court to adopt Delaware’s reasoning.

The case also involved a challenge to Delaware’s absentee voting laws, which allow people who are likely to repeatedly qualify to vote absentee, such as those serving in the armed forces or who have an ongoing physical disability, to apply for permanent absentee status. The plaintiffs argued such repeat absentee allowance is rife for abuse and goes beyond the scope of the state constitution’s absentee voting mandates, which only direct the state legislature to make allowance for those unable to vote “at such general election.”

The Delaware Supreme Court did not reach the constitutional arguments, instead dismissing the case for lack of standing. The plaintiffs alleged only a generalized injury as voters, the court said, rather than a particularized injury distinguishable from that suffered by “other members of a class or the general public.”

Last month’s decision is the second election-method lawsuit to come before the Delaware Supreme Court in recent years. In 2022, the court struck down the state’s newly enacted same-day registration and no-excuse mail-in voting laws in a lawsuit brought by a Republican candidate for the state legislature, who was also represented by Public Interest Legal Foundation. In that case, the court agreed with the plaintiffs that same-day registration violated constitutional requirements that registration end 10 days before an election and that absentee voting provisions did not extend to allowing all voters — including those who could get to the polls — to vote by mail.

A challenge to absentee voting is also pending in New York. Rep. Elise Stefanik (R-NY), along with the Republican National Committee and other Republican groups, has challenged a 2023 law that permits voters to vote by mail, without an excuse, during the early voting period. The plaintiffs claim the law violates the New York Constitution, which only expressly authorizes absentee voting for people who are out of town and people who are physically disabled or ill. In May, a unanimous New York appellate court said the plaintiffs’ position would “disregard the historical record” that grants authority to the legislature to prescribe the method of elections. New York’s high court is scheduled to hear oral arguments in the case at the end of July.

Measures like early in-person voting, absentee voting, and ballot boxes allow greater access to the polls by providing voters with flexibility — especially if they are unavailable to vote on Election Day — and helping decrease Election Day crowds and wait times. But in 2020, Donald Trump and some of his supporters claimed that absentee voting left elections vulnerable to voter fraud. Despite there being effectively no evidence to support those claims, some state legislatures have since responded by passing laws that restrict access to the polls.

But several states, including Delaware, enacted laws that offered greater access to the polls, such as expanding absentee voting options or allowing ballots to be returned to designated drop boxes. Lawsuits targeting such statutes are part of organized efforts by Republican party leaders and allies. Election law-related lawsuits are “something that’s very important to President Trump,” a Republican National Committee senior advisor recently told the Associated Press.

The recent decisions in Delaware and Wisconsin make voting easier in those states — but with litigation ongoing elsewhere and the election just a few months away, some uncertainty remains about how and when voters can cast their ballots.

Erin Geiger Smith is a writer and editor at the Brennan Center and State Court Report. 

Suggested Citation: Erin Geiger Smith, Delaware and Wisconsin Supreme Courts Protect Ballot Access, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jul. 15, 2024), https://statecourtreport.org/our-work/analysis-opinion/delaware-and-wisconsin-supreme-courts-protect-ballot-access.