On Wednesday, President Donald Trump sued a broad range of Wisconsin officials, including Gov. Tony Evers (D-Wisc.), for violating the Constitution by trampling state law and privileging heavily Democratic areas over Republican areas. He had filed a separate lawsuit in the Wisconsin Supreme Court on Tuesday. This second lawsuit focuses on an alleged election scheme that undermined the integrity of ballots by weakening the chain-of-custody protections mandated by state law.
“The United States Constitution prevents the rules in a Presidential Election from being changed at the last minute by un-elected bureaucrats and local politicians who may have a more narrow interest in the outcome of the election. We have alleged in our Complaint on behalf of the President that the Wisconsin Elections Commission and other state and local officials in Wisconsin broke the Wisconsin Election Code and ran an unconstitutional and unlawful election,” Bill Bock, lead counsel in Trump’s Wisconsin lawsuit, said in a statement.
“Today’s federal lawsuit in Wisconsin reveals an apparently coordinated effort to push a new form of balloting upon Wisconsin voters that was not protected by uniform chain of custody and security standards and protocols,” Jenna Ellis, senior legal advisor for the Trump campaign and the president’s personal attorney, added. “Regrettably, this is the same sort of conduct we have seen across many battleground states that Democrats knew they had to win to defeat the President where the rules of the election were changed at the last minute and guardrails against fraud were simultaneously lowered.”
“We hope that the State Legislatures in every affected State will take up this battle to protect the voters in their State. This is a solemn responsibility the Constitution entrusts directly to State Legislatures,” Ellis urged. “The time for full scale investigations and resolve to uphold the Constitution is now, and President Trump is committed to fighting corruption and ensuring free and fair elections today and into the future for every American.”
The lawsuit alleges four basic legal violations involving the state’s photo identification law, absentee ballot drop boxes, and tampering on witness certifications on absentee ballot envelopes.
Wisconsin law requires voters to present a photo ID in order to vote in-person. It also requires absentee voters to present a photo ID with their absentee ballots for the first time they cast an absentee ballot, with exceptions for active-duty military and the very aged, ill, or infirm. In lieu of presenting ID, a first-time absentee voter can submit a signed statement from a witness.
According to the lawsuit, election officials allowed “tens of thousands of voters” without illness or infirmity to vote absentee for the first time without a photo ID or a witness statement. In fact, on March 29, the Wisconsin Elections Commission sent election officials guidance declaring that during “the current public health crisis, many voters of a certain age or in at-risk populations may meet that standard of indefinitely confined until the crisis abates.”
“This guidance contradicts Wis. Stat. § 6.86(2)(a) which requires an actual and verifiable physical or temporal condition being presently experienced by the voter (i.e., age, physical illness or infirmity or disability) to justify an application for an absentee ballot based on indefinite confinement or indefinite disability and not a inchoate fear or apprehension experienced by the voter,” the lawsuit argues.
The lawsuit also claims that the mayors of Wisconsin’s five largest cities (Milwaukee, Madison, Kenosha, Green Bay, and Racine)concocted a plan to implement a new form of balloting using un-manned absentee ballot drop boxes without adequate or uniform chain of custody standards and security protocols in violation of Wisconsin’s election laws. The lawsuit mentions the Center for Tech & Civic Life, heavily funded by Facebook CEO Mark Zuckerberg, which allegedly helped fuel the scheme.
The Wisconsin Elections Commission facilitated this scheme that undermined the ballots’ chain of custody, according to the suit.
Finally, the lawsuit claims that election workers tampered with the witness certifications sent in with first-time absentee voter ballots, in violation of Wisconsin law.
Trump’s lawsuit asks the court to declare that Wisconsin officials violated the Electors Clause of the Constitution by failing to abide by laws duly enacted by the Wisconsin legislature and that they violated the Equal Protection and Due Process Clauses by privileging voters in some areas of the state over voters in other areas.
The lawsuit asks the court to declare that these alleged constitutional violations “likely tainted more than 50,000 ballots,” far more than Joe Biden’s roughly 20,000-vote margin of victory in the state. Trump also asks the court to send the case to the Wisconsin legislature to “determine what remedy, if any, the Wisconsin Legislature should impose within its authority pursuant to the Electors Clause.”
Finally, the lawsuit asks the court to enjoin “any actions consistent with the Court’s declaration and judgment,” by which Trump presumably means the court should order Wisconsin officials to decertify Biden’s win until such a time as the votes can be properly recounted.
While the lawsuit makes a good case that Wisconsin officials violated the law, it remains unclear exactly what the best course of action for the legislature would be. It would likely be rather difficult to sort out the first-time absentee ballots that were turned in without voter ID, and it may also be difficult to determine which ballots were collected through un-manned dropboxes. The very idea that chain of custody may have been broken throws ballots into question, but it does not provide a clear path toward sorting legal from illegal ballots.
This lawsuit effectively asks the legislature to put the genie back into the bottle. Democrats may have cheated in this election, but it is not clear how to reverse that in time to stop Wisconsin’s electors in the Electoral College from casting their votes for Biden.
Trump is right to bring the case, but it may not give him the relief he desires.
As J. Christian Adams pointed out, Democrats changed the game in the 2020 election, but many of the ways they did so were not exactly illegal. Even in cases where officials violated the law, it seems doubtful that parsing legal from illegal votes may even be possible at this point.
However the 2020 election shakes out, Americans of all parties should demand security in their elections. Officials cannot violate the law in the name of enabling voting during a pandemic, and issues like a ballot’s chain of custody matter a great deal.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.