Election 2020

Did the Conservative Wisconsin Supreme Court Just Doom Trump's Election Lawsuit?

AP Photo/Evan Vucci

On Thursday, the Wisconsin Supreme Court refused to take up President Donald Trump’s lawsuit regarding the 2020 election, ruling that the case must make its way up through lower courts, even though the state’s Electoral College electors are scheduled to cast their votes on December 14. The Trump campaign’s lead lawyer in Wisconsin, Jim Troupis, framed the decision as a qualified win.

“We welcome the direction of the Supreme Court to file in Dane and Milwaukee Counties as we pursue making certain that only legal votes count in Wisconsin – and we will immediately do so,” Troupis said in a statement. “It was clear from their writings that the court recognizes the seriousness of these issues, and we look forward to taking the next step. We fully expect to be back in front of the Supreme Court very soon.”

“As I have said before, we will continue fighting on behalf of Wisconsinites and the American people to defend their right to a free and fair election. The only way to do that is by helping to restore integrity and transparency in our elections,” he added.

The lawsuit cites four cases of “clear evidence of unlawfulness, such as illegally altering absentee ballot envelopes, counting ballots that had no required application, overlooking unlawful claims of indefinite confinement, and holding illegal voting events called Democracy in the Park.” The lawsuit claims that Wisconsin officials counted 221,323 illegal votes, about eleven times Joe Biden’s margin.

Trump asked the state’s Supreme Court to take the case directly, claiming there was not enough time for the case to work its way up to the Wisconsin Supreme Court before Dec. 14.

New Trump Lawsuit Claims Wisconsin Counted 221K Illegal Votes, ELEVEN TIMES Biden’s Margin

While the court has a 4-3 conservative majority, Justice Brian Hagedorn joined with the court’s three liberals in denying the petition without weighing in on Trump’s allegations, the Associated Press reported. Hagedorn said the law was clear: the case had to start in a lower court.

“We do well as a judicial body to abide by time-tested judicial norms, even — and maybe especially — in high profile cases,” he wrote. “Following this law is not disregarding our duty, as some of my colleagues suggest. It is following the law.”

Chief Justice Patience Roggensack said in her dissent that she would have taken the case and referred it to lower courts for factual findings, which could then be reported back to the Supreme Court for a ruling.

In another dissent, conservative Justice Rebecca Bradley wrote that the court “forsakes its duty” by not determining whether elections officials complied with the law. She argued that inaction will undermine the public’s confidence in elections.

“While some will either celebrate or decry the court’s inaction based upon the impact on their preferred candidate, the importance of this case transcends the results of this particular election,” Bradley wrote in a dissent joined by Roggensack and Justice Annette Ziegler. “The majority’s failure to act leaves an indelible stain on our most recent election.”

Gov. Tony Evers (D-Wisc.), one of the defendants, naturally praised the decision.

According to the AP, Trump’s lawsuit challenged procedures “that have been in place for years and never found to be illegal,” but the lawsuit claims those procedures are nonetheless in conflict with the clear stipulations of the law.

As I reported here at PJ Media on Tuesday:

According to the lawsuit, the Wisconsin Elections Commission directed municipal clerks to illegally alter incomplete absentee ballot envelopes in violation of state law. Officials told clerks they could rely on their own “personal knowledge” or “lists or databases at his or her disposal” to add missing information to returned absentee ballots. According to Wisconsin law, voters themselves — not election officials — must correct incomplete absentee ballots.

The lawsuit claims that a total of at least 5,517 absentee ballots were improperly counted in this way.

Clerks also allegedly issued absentee ballots to voters without requiring the application that Wisconsin state law requires. According to the lawsuit, clerks in Madison and Milwaukee issued thousands of absentee ballots without collecting a written application during the two-week in-person absentee voting period from October 20, 2020, to November 1, 2020.

The lawsuit claims that election officials improperly counted at least 170,140 absentee ballots for which voters never sent in an application.

The lawsuit also claims that Madison and Milwaukee clerks allowed voters to circumvent voter ID laws to claim an absentee voting status that is reserved for voters who are indefinitely confined on account of physical illness, infirmity, old age, or disability.

The Trump campaign claims that officials illegally counted 28,395 absentee ballots cast under false pretenses of Indefinite Confinement.

Finally, the City of Madison created polling locations at over 200 parks and city locations as part of a Democracy in the Park voting drive. The Trump campaign claims that the Democracy in the Park initiative violated Wisconsin law since these events took place outside of the county’s approved polling locations and did not follow the state’s absentee voting requirements.

Joe Biden’s campaign advertised the event, encouraging allegedly illegal voting.

The lawsuit claims that election officials improperly counted 17,271 absentee ballots illegally collected at these unauthorized locations.

Trump Sues Wisconsin Over ‘Unconstitutional and Unlawful Election’

In her dissent, Roggensack said the state Supreme Court owed it to the public to determine whether or not election officials’ advice was correct.

“However, doing so does not necessarily lead to striking absentee ballots that were cast by following incorrect WEC advice,” Roggensack admitted. “The remedy Petitioners seek may be out of reach for a number of reasons.”

In many ways, Democrats changed the game in 2020, as J. Christian Adams reported. Trump ran an extremely powerful traditional campaign, expanding his voter base to include more minorities and women, but the Mark Zuckerberg-funded Center for Technology and Civic Life helped fuel a get-out-the-vote machine in key left-leaning cities that boosted Joe Biden’s margin enough to overcome the president’s gains.

Even if officials broke the law as Trump has alleged, it may be difficult to identify and disqualify all the ballots involved. Should voters who believed they were following the law in doing what officials told them nevertheless have their votes thrown out? Even assuming that the answer is clearly “yes,” it is far from easy to identify these ballots at this point in time.

In addition to this lawsuit, Trump filed a separate lawsuit on Wednesday in a federal court, asking the Wisconsin legislature to take custody of all the ballots and find a way to remove illegal ones. It remains unclear if the legislature can provide the relief Trump seeks.

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Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.

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