Wisconsin Supreme Court changes course, will allow expanded use of ballot drop boxes this fall

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MADISON, Wis. — The Wisconsin Supreme Court ruled Friday that officials can place ballot drop boxes around their communities in this fall’s elections, overturning its own ruling two years ago limiting their use in the presidential swing state.

The court limited the use of drop boxes in July 2022, ruling then that they could be placed only in local election clerks’ offices and no one other than the voter could return a ballot in person.

Conservatives controlled the court at that time, but Janet Protasiewicz’s election victory in April 2023 flipped the court to liberal control. Seeing an opening, Priorities USA, a progressive voter mobilization group, asked the court in February to revisit the decision.

At least 29 other states allow for absentee ballot drop boxes, according to the U.S. Vote Foundation, and expanded use in Wisconsin could have major implications in the presidential race.

Wisconsin again figures to be a crucial swing state after President Joe Biden barely won it in 2020 and Donald Trump narrowly took it in 2016. Democrats believe that making it easier to vote absentee will boost turnout for their side.

The justices announced in March they would review the ban on drop boxes but wouldn’t consider any other parts of the case. The move drew the ire of the court’s conservatives, who accused the liberals of trying to give Democrats an advantage this fall. Democratic Gov. Tony Evers in April urged the court to again allow drop boxes.

The court ruled 4-3 on Friday that drop boxes can be utilized in any location.

Justice Ann Walsh Bradley, one of the court’s four liberal justices, wrote for the majority that placing a ballot in a drop box set up and maintained by a local election clerk is no different than giving the ballot to the clerk, regardless of the box’s location. Local clerks have great discretion in how they administer elections and that extends to using and locating drop boxes, she added.

“Our decision today does not force or require that any municipal clerks use drop boxes,” Bradley wrote. “It merely acknowledges what (state law) has always meant: that clerks may lawfully utilize secure drop boxes in an exercise of their statutorily-conferred discretion.”

All three conservative justices dissented. Justice Rebecca Bradley wrote that the liberals are simply trying to advance their political agenda and criticized them for ignoring the precedent set by the 2022 ruling.

“The majority in this case overrules (the 2022 decision) not because it is legally erroneous, but because the majority finds it politically inconvenient,” Bradley wrote. “The majority’s activism marks another triumph of political power over legal principle in this court.”

The popularity of absentee voting exploded during the pandemic in 2020, with more than 40% of all voters casting mail ballots, a record high. At least 500 drop boxes were set up in more than 430 communities for the election that year, including more than a dozen each in Madison and Milwaukee — the state’s two most heavily Democratic cities.

Trump and Republicans have alleged that drop boxes facilitated cheating, even though they offered no evidence. Democrats, election officials and some Republicans argued the boxes are secure and an Associated Press survey of state election officials across the U.S. revealed no cases of fraud, vandalism or theft that could have affected the results in 2020.

Republicans who control the Wisconsin Legislature intervened in the case, arguing that the justices should leave the 2022 ruling alone. Their attorney, Misha Tseytlin, didn’t immediately respond to an email seeking comment Friday.

Matt Fisher, a spokesperson for the state Republican Party, called the decision a “setback.”

“This latest attempt by leftist justices to placate their far-left backers will not go unanswered by voters,” he said in a statement.

Dane County Clerk Scott McDonell, who administers elections in the state’s most Democratic county, called drop boxes a “common sense tool.” He said they make the election process more convenient and easier for rural and disabled voters and help reduce that number of ballots that arrive after election day too late to be counted.

“Having drop boxes in place for the 2024 elections in August and November will encourage civic participation in our democracy,” McDonell said in a statement.

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Kansas’ top court rejects 2 anti-abortion laws, bolstering a state right to abortion access

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TOPEKA, Kan. — Kansas’ highest court on Friday struck down state laws regulating abortion providers more strictly than other health care professionals and a ban on a common second-trimester procedure, reaffirming its stance that the state constitution protects abortion access.

“We stand by our conclusion that section 1 of the Kansas Constitution Bill of Rights protects a fundamental right to personal autonomy, which includes a pregnant person’s right to terminate a pregnancy,” Justice Eric Rosen wrote for the majority in overturning the ban on a certain type of dilation and evacuation, also known as D&E.

In striking down the law on clinic regulations, the panel found that the state had failed to meet “its evidentiary burden to show the Challenged Laws further its interests in protection of maternal health and regulation of the medical profession as it relates to maternal health.”

The Kansas Supreme Court’s 5-1 rulings in two separate cases signal that the state’s Republican-controlled Legislature faces stricter limits on regulating abortion than GOP lawmakers thought and suggests other restrictions could fall. Lawsuits in lower state courts already are challenging restrictions on medication abortions, a ban on doctors using teleconferences to meet with patients, rules for what doctors must tell patients before an abortion and a requirement that patients wait 24 hours after receiving information about a procedure to terminate their pregnancies.

Justice K.J. Wall did not participate in either ruling on Friday while Justice Caleb Stegall was the lone dissenter.

In his dissenting opinion in the clinic regulations case, Stegall said the majority’s actions will damage the court’s legitimacy “for years to come.” He said that the declaration that the state constitution protects a right to bodily autonomy could affect a “massive swath” of health and safety regulations outside abortion, including licensing requirements for barbers.

“Surely the government does not have a compelling interest in who trims my beard?” Stegall wrote. “Let the lawsuits commence in this new target-rich environment. The majority has — perhaps unwittingly — put the entire administrative state on the chopping block of strict scrutiny.”

Stegall, who was appointed by conservative Republican Gov. Sam Brownback, is widely regarded as the court’s most conservative member.

Kansas’ top court declared in a 2019 decision that abortion access is a matter of bodily autonomy and a “fundamental” right under the state constitution. Voters in August 2022 also decisively rejected a proposed amendment that would have explicitly declared abortion not a fundamental right and allowed state lawmakers to greatly restrict or ban it.

Lawyers for the state had urged the justices to walk back the 2019 ruling and uphold the two laws, which hadn’t yet been enforced because of the legal battles over them. The state’s solicitor general, appointed by Republican Attorney General Kris Kobach, had argued the 2022 vote didn’t matter in determining whether the laws could stand.

The court disagreed and handed abortion-rights supporters a big legal victory.

Kansas has become an outlier among states with Republican-controlled Legislatures since the U.S. Supreme Court issued its Dobbs decision in June 2022, allowing states to ban abortion completely. That’s led to an influx of patients from states with more restrictive laws, particularly Oklahoma and Texas. The Guttmacher Institute, which supports abortion rights, projected last month that about 20,000 abortions were performed in Kansas in 2023 or 152% more than in 2020.

Kansas doesn’t ban most abortions until the 22nd week of pregnancy, but it requires minors obtain the written consent of their parents or a guardian. Other requirements, including the 24-hour waiting period and what a provider must tell patients, have been put on hold. A lower court is considering a challenge to them by providers.

Abortion opponents argued ahead of the August 2022 vote that failing to change the state constitution would doom long-standing restrictions enacted under past GOP governors. Kansas saw a flurry of new restrictions under former Republican Gov. Sam Brownback from 2011 through 2018.

The health and safety rules aimed specifically at abortion providers were enacted in 2011. Supporters said they would protect women’s health — though there was no evidence provided then documenting that such rules in other states led to better health outcomes. Providers said the real goal was to force them out of business.

The ban on a certain type of D&E procedure performed during the second trimester was the first of its kind when it was enacted in 2015.

According to state health department statistics, about 600 D&E procedures were done in Kansas in 2022, accounting for 5% of the state’s total abortions. About 88% of the state’s abortions occurred in the first trimester. The state has yet to release statistics for 2023.

The procedure ban would have forced providers to use alternative methods that the Center for Reproductive Rights, an abortion-rights advocacy group, has said are riskier for the patient and more expensive.

The 2019 ruling came in the early stages of the lawsuit over the 2015 ban. The justices kept the law on hold but sent the case back to the trial court to examine the ban further. A trial judge said the law could not stand.

Three of the court’s seven justices joined the court since the 2019 decision. All three were appointed by Democratic Gov. Laura Kelly, a strong abortion-rights supporter, but one of the three — Wall — removed himself from the cases.

Bret Stephens: What would a better Israeli prime minister do?

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A better Israeli prime minister than Benjamin Netanyahu would immediately hold an election. Israelis deserve a government they believe can bring them out of crisis, not one that got them into this crisis. If that government is still led by Netanyahu, at least he would have an honest mandate, and dissenting Israelis would have fewer reasons to protest him. It would also give the prime minister more authority over a military that seems to think that it can openly oppose the views of its civilian masters.

A better Israeli prime minister would declare the following policy on a Palestinian state: Israel’s government will work toward one that looks like Costa Rica or the United Arab Emirates. It will oppose and obstruct one that is likely to look like Yemen or Afghanistan. If the character of a Palestinian state would be moderate, not militant, committed to the prosperity of its people, not to the destruction of its neighbors, then the likelihood of its creation would be far greater.

A better Israeli prime minister would create long-term safe zones within the Gaza Strip — at least while Israel remains in the territory — for women, children, the elderly and the sick. These would be monitored and financed by the U.S. Agency for International Development and its European counterparts; open to foreign journalists; and well provided with food, shelter and medicine. The zones would alleviate humanitarian distress, put fewer civilians in harm’s way, end the constant displacement of Palestinians from one part of the territory to another, simplify Israel’s efforts to strike terrorists, and deprive Hamas of some of its frequent propaganda victories in the battle of images.

A better Israeli prime minister would offer a postwar vision for Gaza: no Israeli occupation of any part of the territory in exchange for a 10-year Arab mandate for Gaza. It would be led by Arab states that have diplomatic relations with Israel, preferably including Saudi Arabia, with the goal of providing Palestinians with security and governance while ensuring that Hamas does not remain in power. Norway, Ireland, Spain and other governments that recognize Palestinian statehood should put their money where their mouths are by providing reconstruction assistance. If it succeeds, it can become a model for the West Bank.

A better Israeli prime minister would offer safe passage out of Gaza to Qatar for all Hamas fighters and leaders in exchange for the release of all remaining Israeli hostages, living and dead. Yahya Sinwar and the other masterminds of Oct. 7 can be brought to justice later. But Israel should strike no deal that effectively legitimizes Hamas’ continued grip on power.

A better Israeli prime minister would never accept ministers who aren’t qualified for their jobs, above all in a time of war. Itamar Ben-Gvir, the minister of national security, never served in the military. Bezalel Smotrich, the minister of finance, has no background in finance. Elections may bring right-wing rabble-rousers to power, but elections don’t require the prime minister to keep them in positions where they damage the national interest.

A better Israeli prime minister would set a clear deadline for the full implementation of U.N. Resolution 1701 of 2006, which requires Hezbollah to retreat behind the Litani River, several miles north of Lebanon’s border with Israel. The deadline would call attention to Hezbollah’s violations of the resolution, give Israel greater justification to go to war in the north if the deadline isn’t met and offer more reason for the United States to lend its full support for the effort.

A better Israeli prime minister would not be planning to deliver a speech to Congress when the war in Lebanon could erupt at any moment. He would not give a speech that would mainly serve to highlight America’s partisan divisions over support for Israel. Rather than antagonizing Democratic Party leaders and liberal Americans, he would work to repair strained ties with them by emphasizing that Israel remains the only country in the Middle East where progressive values are respected. And he would never air differences with the American president in public, at least not while Israel remains dependent on U.S. munitions. (He could also ask the president to return the courtesy.)

A better Israeli prime minister would oppose government stipends and subsidies for religious students who refuse enlistment orders. Those who contribute the least to Israel’s security and material well-being should expect to receive the least from those who give the most.

A better Israeli prime minister would articulate the real stakes in this war — not a war of Israel against Hamas, but a multifront campaign against an “Axis of Resistance” that includes not just Hezbollah and the Houthis but also their masters in Iran and its allies in Russia, Syria, China and North Korea. In other words, the fighting we see in Gaza isn’t a regional war between Jews against Muslims. It’s a battle in a long global struggle between the free and unfree worlds.

A better Israeli prime minister would do this and more. Israel’s crises will abate when it gets one.

Bret Stephens writes a column for the New York Times.

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Stephen L. Carter: Debit card fees get a deserved hit from the Supreme Court

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Before announcing the outcome of Monday’s Supreme Court decision in Corner Post, Inc. v. Board of Governors of the Federal Reserve System, Justice Amy Coney Barrett joked that it wasn’t the case the multitude had packed the courtroom to hear. And with the presidential immunity decision being handed down minutes later, the case of Corner Post has been a bit crowded out of the news cycle.

Which is unfortunate.

Because whatever one’s views on the tribulations (and trials) of a certain Donald J. Trump, what happens on remand in Corner Post might well have a lasting impact on something everybody does: buying stuff.

According to the critics, because the Corner Post decision eases the path for people who sue administrative agencies, it represents just the latest fusillade in the court’s assault on the regulatory state. But I’m less sure that Barrett’s majority opinion is wrongheaded. And I’m intrigued that courts might soon be called upon to examine the merits of the “interchange” fees merchants pay to banks for debit card transactions.

That might not be a bad thing.

The case involves a challenge to a Federal Reserve rule called Regulation II, issued in 2021 under Dodd-Frank, to get a handle on debit card swipe fees. The rule, which applies to cards issued by banks with $10 billion or more in assets, sets a maximum debit card fee of .05% of the amount of the transaction, plus 21 cents. After Regulation II went into effect, the fees fell immediately, some by well over half. E-retailers appeared to see the biggest initial drop. (Credit cards typically charge higher transaction fees, but the plaintiffs in this case were only challenging debit card fees, perhaps because the contested regulation only applies to debit cards.)

Sounds good, right? The trouble is, many businesses think interchange fees are still too high — and they blame the Fed. The statute requires the Fed to assure that the fees “shall be reasonable and proportional to the cost incurred by the issuer with respect to the transaction.” Retailers argue that the ceiling of .05% plus 21 cents is neither reasonable nor proportional. Efforts to litigate the issue have been unavailing.

Enter a North Dakota truck stop called Corner Post. In 2021, the truck stop sued the Fed, asserting that the rule’s statutory maximum fee was more than what Dodd-Frank allows. What makes the lawsuit unusual is that Regulation II was finalized in 2011 — a full decade before the suit was filed, and seven years before Corner Post opened for business.

A plaintiff who wants to challenge a federal agency rule on its face must file suit “within six years after the right of action first accrues.” (The rule is different when a suit challenges the way a federal agency has applied its rules to the plaintiff.) The technical question before the justices was whether, as most federal courts have held, that means six years after the challenged rule is finalized; or whether, as the truck stop claimed, the suit may be filed six years after the injury materializes, no matter how long ago the rule went into effect.

The Supreme Court, in a 6-3 decision, held that the six-year period begins not when the rule takes effect, but “when the plaintiff has a complete and present cause of action” — meaning that the right to use “accrues” at the moment when the injury takes place.

Here’s where things get a bit existential: In the case of Corner Post, no injury was suffered in 2011, when Regulation II went into effect, or in the ensuing seven years, because the truck stop did not exist. Rather, the injury was the hundreds of thousands of dollars in swipe fees the truck stop eventually paid to banks. Every penny was paid long after the rest of the retail world had been forced to learn to live with the rule; and long after the banks had become accustomed to the income stream.

That last part is what worries the critics. Taking the majority seriously, were I to launch a new business tomorrow, the next day I’d be able to file suit against almost any extant administrative regulation, no matter how ancient and venerable, as long as the rule costs me money.

But private entities get sued all the time to halt longstanding practices said to have caused the plaintiff harm. It’s not clear why government agencies shouldn’t bear the same risk.

Besides, most controversial federal regulations are challenged immediately, and most of those challenges fail. So even if a few of the new lawsuits succeed, the shock suffered by a regulated entity is likely to be not much different than what often happens to the rules when a new president takes over.

All of which leads us back to the interchange fees themselves. At the level of policy, I have some sympathy for the claim that they’re too high — not because merchants are suffering, but because their customers are.

Poor customers in particular.

Swipe fees on debit and credit cards alike are regressive. Except in the rare case of a retailer that gives an explicit discount for cash — gas stations provide a prominent example — the fee is factored into the price of the good. Those fees, in turn, help subsidize credit card rewards, which are most likely to accrue to wealthier shoppers. Those who don’t use plastic (or titanium!) subsidize those who do, paying the same price and getting none of the benefits. This is a well-known difficulty. Thus do lower-income customers (and older ones) subsidize the well-off.

None of this is what Corner Post had in mind in filing suit, and the puzzle might not have a regulatory solution. But only if rules are repeatedly tested are we likely to have a serious conversation on such topics.

Stephen L. Carter is a Bloomberg Opinion columnist, a professor of law at Yale University and author of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”

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