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A UW-Madison elections expert said the Supreme Court ruling on drop boxes is not retroactive.
The conservative law firm that filed the drop box lawsuit also said the ruling is not retroactive.
Former President Donald Trump, who fell nearly 21,000 votes short of winning Wisconsin in the 2020 presidential election, has never accepted defeat in the Badger State.
Not after his own recount request in Milwaukee and Dane counties actually increased Joe Biden’s margin of victory. Not after a series of lawsuits failed. Not after the election result was certified. Not after electoral votes were counted, after Biden was sworn in, or in the face of expert after expert saying there is no evidence of widespread fraud, and no way to undo the result.
So, maybe it’s no surprise that Trump now apparently wants to go back in time.
On July 8, 2022, the state Supreme Court ruled that Wisconsin law does not permit drop boxes anywhere other than election clerk offices and that only state lawmakers may make new policy stating otherwise — not the Wisconsin Elections Commission, which had issued guidance to clerks allowing them.
Following the decision, Trump took to his social media platform, Truth Social, and Telegram to declare:
"Other States are looking at, and studying, the amazing Wisconsin Supreme Court decision declaring Ballot Boxes ILLEGAL, and that decision includes the 2020 Presidential Election."
In other words, he is claiming the decision is retroactive, and — in his view — could somehow cancel the result.
That’s plainly nonsense.
Ruling doesn’t look backward
Let’s start with some basic facts.
Drop boxes allow absentee ballots to be returned to the boxes, often placed at locations such as libraries or even police stations, instead of being dropped in the mail and returned to clerk’s offices.
Drop boxes are used across the state — not just in typically Democratic urban areas.
According to an affidavit from Meagan Wolfe, Wisconsin Elections Commission administrator, "At the time of the 2020 General Election, the Commission was aware of 528 drop boxes across the state of Wisconsin…By Spring 2021, local officials had reported 570 drop boxes to the Commission, spanning at least 66 of Wisconsin’s 72 counties."
Republicans on the Wisconsin Election Commission signed on to the guidance to clerks for 2020 that clarified drop box use. The use of drop boxes was not part of Trump’s legal challenges in the immediate wake of the 2020 election. And drop boxes were in use in 2016, when Trump won a narrow victory in Wisconsin.
Indeed, an Oct. 16, 2020, article in the run-up to the election from PolitiFact National noted that ballot drop boxes have been in use for about two decades.
Importantly, the new Wisconsin Supreme Court decision does not indicate, or even suggest, that there is any retroactive aspect to the decision. To be clear, this past January, while the case was under consideration, the court explicitly left drop boxes in place for the Feb. 15, 2022, primary for Milwaukee mayor and local offices across the state.
What’s more, there is no evidence that Biden supporters were more likely than Trump supporters to use the drop boxes. There was a huge influx in absentee ballots across the state in 2020 because of concerns about voting during the pandemic.
"The Supreme Court ruling does not apply to the 2020 presidential election," Barry C. Burden, professor of political science at the University of Wisconsin-Madison and director of the Elections Research Center, told us. "That election has been audited, recounted, and certified. The electoral votes from Wisconsin were counted in Washington on January 6. None of that can be undone.
"There were multiple lawsuits filed after the election by Trump and his allies in hopes that various categories of absentee ballots — including those returned by drop box or other individuals — would not be counted. All of those lawsuits failed.
"The Supreme Court's decision applies to elections going forward."
In a July 13, 2022, Milwaukee Journal Sentinel article, Rick Esenberg, president and chief counsel of the conservative Wisconsin Institute for Law & Liberty, which filed the lawsuit challenging the boxes, said interpretations of the ruling as having a retroactive effect are incorrect.
"The case was prospective only," Esenberg said. "It declared that drop boxes are not permitted under Wisconsin law. Now, if some municipality would go ahead and use boxes anyway in a manner that’s not permitted by the court, then somebody would be able to challenge that and they might be able to get those ballots drawn down. But there's no retroactive impact."
Trump’s record on Wisconsin-related claims has been, well, checkered at best:
Sept. 29, 2020, Trump claimed ballots in Wisconsin "are being dumped in rivers" or creeks. We rated this claim False.
Nov. 18, 2020, Trump claimed "A day AFTER the election, Biden receives a dump of 143,379 votes at 3:42AM (in Wisconsin), when they learned he was losing badly. This is unbelievable!" We rated this claim Pants on Fire.
Dec. 2, 2020, Trump claimed "In Wisconsin, there are approximately 70,000 absentee ballots that do not have matching ballot applications as required by law." We rated this claim Pants on Fire.
Dec. 2, 2020, Trump claimed in a speech that residents the Wisconsin Election Commission suspected of moving were "illegal voters." We rated that claim False.
June 25, 2021, Trump claimed Republican leaders "are working hard to cover up election corruption in Wisconsin." We rated this claim Pants on Fire.
June 26, 2021, Trump claimed "In 2020 we won (Wisconsin)." We rated this claim Pants on Fire.
August 12, 2021, Trump claimed: "A Milwaukee election employee even acknowledged dropping off just the margin of ballots needed for a Biden win at 3 a.m." We rated this claim Pants on Fire.
Trump claimed the Wisconsin Supreme Court decision declaring ballot drop boxes illegal "includes the 2020 Presidential Election."
That claim defies logic, and the court’s order itself. The state Supreme Court itself has explicitly permitted the drop boxes in some past elections. And its order is prospective — for the future, not the past. And that’s an assessment from the group that filed the lawsuit.
We rate this claim Pants on Fire.
Milwaukee Journal Sentinel "Trump uses Wisconsin Supreme Court decision on ballot drop boxes to re-stoke baseless arguments about the 2020 election," July 13, 2022
Milwaukee Journal Sentinel "Wisconsin Supreme Court rules absentee ballot drop boxes are illegal," July 8, 2022
Email, Barry C. Burden, Professor of Political Science at the University of Wisconsin-Madison. He is also Director of the Elections Research Center, July 13, 2022.
PolitiFact Wisconsin ""In 2020 we won (Wisconsin)." June 26, 2021.
PolitiFact Wisconsin "Says Republican leaders "are working hard to cover up election corruption in Wisconsin." June 25, 2021.
PolitiFact Wisconsin "A Milwaukee election employee even acknowledged dropping off just the margin of ballots needed for a Biden win at 3 a.m.", Aug. 12, 2021
Milwaukee Journal Sentinel "Donald Trump will visit Milwaukee in August for an event that charges attendees thousands of dollars to meet him," July 12, 2022
American Freedom Tour. UWM Panther Arena, Aug. 20, 2022
WRP.org, Afffidavit, Meagan Wolfe, administrator, Wisconsin Elections Commission, November 2021
Milwaukee Journal Sentinel "Wisconsin Supreme Court allows ballot drop boxes for February spring primary, will decide later on future elections," Jan. 28, 2022
PolitiFact National "Ballot drop boxes have long been used without controversy. Then Trump got involved," Oct. 16, 2020.
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