Wausau mayor unilaterally removes ballot drop box, resulting in investigation and local outrage

Wausau’s city clerk said she has reported an “election irregularity” after the mayor of Wausau removed a locked ballot drop box from outside City Hall over the weekend.

Mayor Doug Diny said he was “taking a stand” when he carted away the drop box on Sunday, returning it inside City Hall. In an interview, he said he felt the box was not secure and he did not accept legal opinions stating that the administration of elections is at the discretion of the city clerk.

“I was at work on Sunday when I realized all this was going on, and I decided, you know what, we’re going to take a little bit of a stand here,” Diny said. “Maybe we’ll need to get some opinions on it.”

Diny was referring to legal opinions in the wake of a July ruling by the Wisconsin Supreme Court. That ruling found that state law permitted drop boxes, overturning a 2022 ruling that had banned most uses of them. 

“Our decision today does not force or require that any municipal clerks use drop boxes,” Justice Ann Walsh Bradley wrote in the majority opinion. “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.”

After the court’s ruling, the Wisconsin Elections Commission issued guidance for clerks on the use of drop boxes in this year’s elections. That guidance said “municipal clerks have broad statutory discretion to administer elections in their jurisdiction.”

According to Diny, Wausau’s city clerk informed him on Thursday that the city attorney had advised her the law stated that placement of the drop box was at the clerk’s discretion.

“She told me on Thursday, when (absentee) ballots went out, that she was advised that by the city attorney that she didn’t need to come to me, she didn’t need to come to council,” Diny said.

When pressed on his legal rationale for rejecting the city attorney’s opinion, Diny said it was “hearsay” and he had not heard it from the city attorney directly. He also asked to rephrase his statement, saying the clerk told him she had been advised that she did not need to bring the issue to the city council and may not have said she was advised she did not bring it to him.

“I was never advised by the city attorney … to not remove it,” Diny said.

In a statement Wednesday afternoon, Wausau City Clerk Kaitlyn Bernarde said the matter would be investigated as an election irregularity. She said no ballots or city bills were contained in the locked drop box, and said city staff planned to secure the box on Monday.

“Since this matter has been referred for investigation, the ballot drop box that was originally designated for use is not currently available,” Bernarde said in the statement.

Diny said the Supreme Court ruling did not give guidance on whether elected clerks have different authorities than those who are part of city staff, as is the case in Wausau. Wausau’s city clerk is protected by statute from political interference and can only be fired for cause.

He said he expects the courts will need to clarify the scope of the new law.

Some communities in Wisconsin have banned the use of drop boxes locally, but that came after their city councils voted on local statute, not by unilateral action of the mayor.

A heated email exchange between Diny and Wausau City Council President Lisa Rasmussen obtained by WPR sheds light on the conflict. Rasmussen called for a public apology and the return of the drop box.

“It is not within your or the council’s authority to make decisions about those boxes or interfere with the clerk in her election work, which must remain independent and nonpartisan,” Rasmussen wrote. “It is inappropriate for you to attempt to influence the clerk’s decision about the box and equally wrong for you to take it from its posted site following her decision.”

Diny was elected mayor in April. In the nominally nonpartisan race, he was the Republican-aligned candidate, and defeated Democratic-aligned incumbent Mayor Katie Rosenberg. 

Shortly after his election, in a May interview with a local right-wing radio host, Diny characterized the drop box as a “hot-button issue” and a “distraction.” At that time, the city had removed the locked drop box as the state Supreme Court was deliberating on the case that would ultimately determine the practice was legal.

“I thought we’d remove it, and if the case ever gets revisited, we’ll revisit it,” Diny said in May. 

At a Wausau City Council meeting on Tuesday evening, several speakers used the public comment portion of the meeting to criticize Diny’s action and call for the restoration of the drop box. On Tuesday evening, a small group also protested outside City Hall.