By Keene Winters

Can you believe that we have been arguing about ballot drop boxes in Wausau for a year? The talking points from both sides have filled these pages so many times that most readers have probably lost track of the key issue: power. Who makes policy, the elected officials or the staff?

Whether to have a ballot drop box is a debatable policy issue, and the fight over them started well before Wausau entered the fray. They were controversial emergency measures during the pandemic. Then, in 2022, a conservative Wisconsin Supreme Court scoured the statutes and found no authorizing language for the existence of ballot drop boxes. Drop boxes were dead on a 4-3 vote.

On July 5, 2024, a newly minted liberal majority on the State Supreme Court set out to write drop boxes into the law. To get around stare decisis, the liberal court declared the decision on whether communities set up ballot drop boxes was a minor ministerial function—something akin to how to arrange the chairs or voting booths at a polling station. Therefore, municipal clerks could deploy one if they wished. Drop boxes were now optional by 4-3 vote.

There are problems with the decision. First, it ignored the fact that ballot drop boxes really were a hot-button public policy issue. It also ignored one of the core principals of representative government: elected officials tell appointed officials what the public wants and not vice versa. Moreover, mayors have a statutory duty to supervise the work of their appointed clerks. Figuring out how that all dovetails with this latest court pronouncement seems likely to require further litigation.

Despite the Supreme Court ruling, the elected and appointed officials in the vast majority of Wisconsin communities stayed in their lanes and treated this like any other policy issue. In fact, that is the way Wausau started out. In July of 2024, the new mayor and the clerk were having an ongoing dialogue about the ballot drop box. They mutually agreed not to deploy the box for the August primary because it was in need of repairs and could not be fixed in time. They also agreed on a framework for engaging the city council in the final policy decision for the general election.

Unfortunately, Wausau embattled city attorney, Anne Jacobson, saw an opening in the Supreme Court decision and began to stir the pot. She told the clerk that the decision whether to have a drop box is hers and hers alone, planting the seeds for conflict.

In September of 2024, the city clerk acts on Jacobson’s advice and unilaterally orders the drop box deployed. Expecting further dialogue, the mayor instead finds the partially repaired ballot drop box in front of city hall on a Sunday and takes it back inside to his office.

In response, the clerk fires off an ultimatum to the mayor—undoubtedly written with the help and encouragement of an attorney (either Jacobson herself or Sam Hall, an attorney Jacobson secretly hired to help on the case). She gives the mayor three days to put the box back, or she would go to the Marathon County District Attorney (DA) and ask that the mayor be charged with election interference. The mayor stands his ground. The clerk makes good her threat, and we are off to the races.

Again, this has never been about the efficacy of ballot drop boxes per se. Rather, here is the power play. Because the mayor disagreed with staff, Jacobson wanted him convicted of misconduct in office. Take a moment, and consider the enormous power such a precedent would convey.

The letter goes to the DA, and the first thing that happens is that everyone in the county courthouse recuses themselves because Jacobson’s husband is a sitting district court judge. The Portage County Sheriff’s Department is brought in to do an investigation. The investigation is completed, but no charges are filed.

Now enter the partisans of the previous mayor, who the current mayor defeated. They go down to Madison and lobby the Department of Justice (DOJ) to take up the case. DOJ agents then “raid” the mayor’s home and office, taking his cell phone, his wife’s cell phone and their family computer. Almost a year later, the promise to return the mayor’s property in two weeks remains unfulfilled. The mayor has now spent over $100,000 defending himself in an unending investigatory process that has so far resulted in no charges.

Not happy with the progress of their “law-fare scheme,” many of the same partisans file a complaint with the City Ethics Board in January. The complaint neither alleges a quid pro quo or a conflict of interest. Instead, the ethics board–coincidentally all appointed by the previous mayor–moved forward with the novel theory that the mayor may have knowingly violated federal and state elections laws and could, therefore, be found guilty of misconduct in office by the ethics board.

The simple facts of this case have been known for months, and yet no charges have been filed. Rather, the mayor’s opponents have insisted on more and more investigations, hoping to finally come across that one incriminating nugget that would allow them to argue for a conviction, meanwhile draining the mayor’s bank account and the public treasury.

I wish I could say we are near the end. But, instead, we are waiting for a special prosecutor appointed by the Marathon County DA to come in re-investigate all of the prior investigations.

However, the special prosecutor may be good news. It is hard to believe that an objective outsider would not find all the hyperbolic claims that voters were injured or suppressed by the mayor’s actions to be silly. From there, I hope he will dig a little deeper to expose all of the public officials and licensed attorneys who breached their fiduciary responsibilities to make this law-fare fiasco possible.

It is not enough for Special Prosecutor Eric Toney to conclude with no charges filed. The law-fare schemers need to be brought to heel. We cannot expect good people to run for office or expect government to function at any level if staff can use unlimited amounts of public funds to harass their elected bosses any time they make decisions that the staff advises against.

The ballot drop box controversy in Wausau has always been a proxy fight for power. Who should make policy, the elected officials or the staff? Wausau deserves civil servants—a city attorney and clerk in particular—who show deference to their elected bosses on policy matters and work to solve problems instead of inflaming them.

Keene Winters is a former Wausau city alderman. He is also a two-time winner of recognition from the Wisconsin Newspaper Association for opinion page content.

Home

Opinion: Who should make policy? A brief history of the ballot drop box controversy in Wausau