Wisconsin GOP gubernatorial candidate Kevin Nicholson jumps gun on calling ballot drop boxes illegal

The coronavirus pandemic has changed many aspects of American life, including how votes are cast. As more people are voting by absentee ballot, more are also using ballot drop boxes.

More than 500 drop boxes were available during the 2020 presidential election, according to a database compiled by the Wisconsin Center for Investigative Journalism. 

Like so many other election-related issues, there is litigation surrounding drop boxes, so a Jan. 28, 2022 tweet from Kevin Nicholson – a Republican candidate for governor – caught our attention.

"The use of ballot drop boxes and ballot harvesting is illegal, and all of these questions should have been settled years ago. Absurd we're at this point."

But, as we noted, the issue is currently tied up in court – and the mere fact there is a legal challenge to the practice suggests it is not as cut-and-dried as Nicholson presented.

So, is he right about the use of drop boxes and "ballot harvesting" being illegal?

When asked to provide backup for the claim, Nicholson’s staff pointed us to a more recent tweet, from Feb. 2, 2022. 

In it, Nicholson restates his illegality claim, cites a portion of the law related to the "ballot harvesting" issue, and links to an article by WISN radio talk show host Dan O’Donnell posted on the website of the MacIver Institute, a Madison, Wis.,-based conservative think tank.

Drop boxes and what has been termed "ballot harvesting" are different things, but have become tangled together in the debate. 

Opponents of drop boxes argue that under State Statute 6.87, there are only two ways to return an absentee ballot – through the mail, or by hand-delivering it to the clerk. In short, the argument goes, because drop boxes are not the mail and not a clerk, they are not permitted.

Drop box supporters argue that using drop boxes is simply a form of returning ballots in person. 

Meanwhile, opponents also cite State Statute 12.13, which, among other things, makes it a crime punishable by six months in jail to "receive a ballot from or give a ballot to a person other than the election official in charge." 

But that provision applies more to cases when a voter’s ballot is returned by someone else. This is known as ballot collection or, pejoratively, "ballot harvesting." 

As previously reported by PolitiFact Wisconsin, the practice involves a third-party returning an absentee ballot after the voter fills it out, signs it and performs any other required action. The practice is explicitly allowed in 31 states, according to the National Conference of State Legislatures. 

"Many of these states limit this provision to a family member, household member or caregiver," the NCSL noted. "Sixteen states allow a voter to designate someone — not necessarily a family member, household member or caregiver — to return their ballot for them."

In some cases, there are other rules, such as how many ballots an authorized person can return, or how quickly they must be returned. 

Such restrictions are aimed at combating fraud, such as in a North Carolina case in which, as reported July 19, 2019 by The New York Times, political operative L. McCrae Dowless Jr. was accused of obstruction of justice and illegal possession of an absentee ballot, among other charges. North Carolina prosecutions at the time alleged that Dowless directed others in the criminal mishandling of absentee ballots and that "spoiled absentee ballots were counted." 

At the time, Dowless was working during the 2018 campaign for Mark Harris, the Republican nominee in North Carolina’s Ninth Congressional District. Harris eventually dropped his bid for office and a new vote was ordered. 

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University of Wisconsin-Madison Professor of Political Science Barry C. Burden said Nicholson’s illegality claim is premature, and noted that municipalities – and voters – using the drop boxes were following the guidance they were given.

"In 2020, the Wisconsin Elections Commission provided guidance to clerks stating that both drop boxes and delivery of ballots by other individuals were permitted," Burden wrote in an email. "The Wisconsin Supreme Court has agreed to hear a case out of Waukesha County district court that will in part address the legality of drop boxes and delivery of ballots on behalf of voters. These issues remain unsettled."

Burden, who is director of the UW Madison Elections Research Center, cited a March 31, 2020, guidance memo from the commission to local election officials from Megan Wolfe, administrator of  the commission.

Minutes from a commission meeting a year earlier, on March 11, 2019, show that Wolfe told the body that Wisconsin statutes do not directly address ballot collection. At that meeting, she cited the North Carolina case before noting: "Commission staff is not aware of efforts of any political campaign or other organization systematically contacting absentee voters to collect marked ballots and offering to return them to the clerk." 

Meanwhile, Claire Woodall-Vogg, executive director of the Milwaukee Election Commission, said she thinks Nicholson is taking the statute out of context.

The same statute cited by Nicholson includes language stating that no one may "willfully or negligently fail to deliver, after having undertaken to do so, official ballots prepared for an election to the proper person, or prevent their delivery within the required time, or destroy or conceal the ballots."

Said Woodall-Vogg: "I think 12.13(3)(c) implies that it is fine for someone to deliver absentee ballots on behalf of someone else and would be a felony to undertake delivery and then not deliver." 

All of that, of course, will be hammered out in the court case.

So far, rulings have offered a mixed message.

On Jan. 13, 2022, a Waukesha County judge ruled that absentee ballot drop boxes can't be used in Wisconsin. Waukesha County Circuit Court Judge Michael Bohren determined state law allows absentee ballots to be returned in person or by mail — but not in a ballot drop box.

On Jan. 24, 2022, the District 4 state Court of Appeals blocked the lower-court order and ruled absentee ballot drop boxes can be used in the Feb. 15, 2022 primary. The court issued its order a day before election clerks were scheduled to send voters absentee ballots in the race for Milwaukee mayor and other local contests.

On Jan. 28, 2022, the state Supreme Court agreed to take the case over absentee ballot drop boxes, but left in place the ruling that says they can be used for the Feb. 15 primary.  

On Feb. 11, 2022, the state Supreme Court ruled that it would allow a lower court decision to go into effect that will ban the use of ballot drop boxes for the April election. However, drop boxes can still be used for this week’s primaries, and it's possible the high court will change course and allow them for future elections.

The Nicholson tweet came on Jan. 28, the same day as the Supreme Court agreed to take the case, which leads us to an important final point. The fact the case is before the state Supreme Court shows it is an unsettled matter – far from the definitive claim from the candidate.

What’s more, there is nothing illegal about using the drop boxes in the upcoming primary. It is clearly allowed by the court’s order.

Nicholson claimed  "The use of ballot drop boxes and ballot harvesting is illegal." 

The statement came on the same day the state Supreme Court agreed to take up a lawsuit that addresses these very same questions. That alone underlines the fact that the matter is unsettled and Nicholson’s declaration is – at best – premature.

The fact the court specifically allowed the use of the drop boxes in the Feb. 15 primary is significant, in that – contrary to the impression left by Nicholson’s claim – voters using the drop boxes, and municipalities putting them in place, are not doing anything the courts have deemed impermissible.

That said, there is an element of truth in that at least one lower court reached his conclusion, even if subsequent rulings have muddied the matter and left the question unsettled – both at the time Nichoson made his claim, and as we publish this item.

We rate the claim Mostly False.