On December 29, 2020, President Trump petitioned the U.S. Supreme Court to review a 4-3 ruling by the Wisconsin Supreme Court that denied President Trump redress after a controversial recount of votes in Dane and Milwaukee Counties. The appeal revolves around Respondent’s violations of Article II of the U.S. Constitution that authorizes States, and not judges, to appoint electors in the manner they see fit. Article II, § 1, cl. 2 (the Electors Clause) reads:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
The following questions are presented in this petition:
Whether it violates Article II of the Constitution, as well as the First and Fourteenth Amendments, for state courts, on review of a post-election challenge to the specific ballots cast in a presidential election, to invoke the non-statutory, judge-made doctrine of laches to require the counting of ballots that the Legislature has expressly directed “may not be counted.”
Whether the Wisconsin Supreme Court violated Article II by upholding the counting of 50,125 absentee ballots cast in two counties pursuant to the decisions of election officials to ignore or circumvent state statutes requiring that absentee ballots be delivered only by mail or by hand delivery to the clerk; that photo i.d. be supplied to obtain an absentee ballot (with limited, inapplicable exceptions); and that absentee-ballot envelopes must contain all statutorily required information and may not be altered once delivered.
Whether this Court should set aside the election result in Wisconsin, as not produced in the “Manner” directed by the Legislature, and hence as “failed” within the meaning of 3 U.S.C. § 2, thus affording the Wisconsin Legislature explicit statutory authority to appoint presidential electors to represent Wisconsin.
The Wisconsin State Legislature recognized that voting by mail/absentee ballot was a privilege and had a greater potential for fraud than did in-person election day voting, which was clearly a right. It enacted a presumption against counting the former ballots if they were not completed in strict compliance with the governing statute. Simultaneously, it enacted another presumption that the latter ballots were less likely to be fraudulent and should be counted even if they were completed with less than strict adherence to the statute.
This petition calls out three categories of anti-fraud measures passed by the Legislature that were ignored during the general election:
- Photo I.D. to Obtain Absentee Ballots (28,395)
- Election clerks told voters to use Covid-19 as an excuse to self-identify as “indefinitely confined” and avoid the Photo I.D. requirement for first-time absentee voters
- Return of Absentee Ballots (17,271)
- Violations of chain-of-custody controls for returning absentee ballots
- “Curing” of Missing Information for Witnesses Who Sign Ballot Envelopes (4,469)
- Tampering with and counting absentee ballots that were defective due to incomplete or incorrect declarations on the ballot envelope
(Click here for more detail on these categories and to read a summary of the lower court proceedings, the majority opinion, and the very powerful three dissenting opinions).
In the 4-3 ruling from the Wisconsin Supreme Court, Justice Hagedorn declined to review the merits of these three categories of fact-based departures from the state law. He provided two explanations, neither of which would be taken seriously at any other time.
As to the first category, Justice Hagedorn ignored the fact that clerks in Dane and Milwaukee counties told voters to claim that they were “indefinitely confined due to age, physical illness or infirmity,” or that the clerks had not exercised their statutory obligation to verify this status. Instead, he faulted President Trump’s team for not having proven the negative – that these voters were, in fact, able to provide photo I.D. Adding confusion to this opinion, Justice Hagedorn, in a concurring opinion with his own, wrote that there was not enough time to do a comprehensive analysis given the election certification time constraints. He then gave an interview to the New York Times in which he stated that there was nothing in the “nature of the law or the facts” that supported throwing out the election. This is problematic because the Wisconsin Supreme Court NEVER heard the merits of this case and could not have drawn such conclusions.
As to the second and third categories, Justice Hagedorn cited the rarely applied common law doctrine of laches that defendants use to avoid dealing with the facts of a case and instead claim the plaintiff ran out of time to bring the case. The irony is that President Trump could not have brought the suit much earlier because there was no damage until the ballots had been cast and counted.
President Trump outlined three reasons the U.S. Supreme Court should grant this petition:
- The Wisconsin Supreme Court’s decision to invoke the doctrine of laches and avoid addressing the merits of the case violates Article II of the Constitution and threatens the free speech and due process rights of future candidates. If left to stand, this would require future candidates to monitor all election practices across the state’s 72 counties and “bring litigation before election day against any practice that might end up later impacting the vote count, or risk being told later that they waited too long to sue, and will not be permitted to challenge unlawful ballots in a post-election proceeding authorized by state statutes.”
- The Wisconsin Supreme Cout violated Article II by upholding the counting of the 50,125 absentee ballots at issue. By not even exploring the underlying claim and proposed remedy, this outcome could “incentivize illegal activity in future elections in which it is difficult to prove the exact impact of the wrongdoing after ballots are opened.” In short, it creates an unattainable burden of proof.
- The U.S. Supreme Court should set aside the Wisconsin election under 3 U.S.C. § 2 and allow the Wisconsin Legislature to appoint its state’s presidential electors. The election should be considered “failed” such that an alternate slate of electors can be put forward.
The petition concludes with a reference back to the election crisis of 1876-77 in which time was permitted for the opposing candidates to review the results because, as President Grant observed, “either Party can afford to be disappointed in the result, but the country cannot afford to have the result tainted by suspicion of illegal or false returns.”
As Justice Ziegler observed in her dissent, “[t]his Court is likely the only institution of our government capable of credibly resolving the controversy over this election.
President Trump filed a motion to expedite because the deadline for a response was set for February 3, 2021, after the Inauguration of Joe Biden.
On January 4, 2021, Todd C. Bank, a U.S. citizen, filed a brief in support of President Trump’s petition. He argued that, if the Wisconsin Supreme Court had changed the meaning of any state law that was passed pursuant to the Electors Clause of the U.S. Constitution, that court would have violated the Constitution. As a result, the U.S. Supreme Court should conduct an independent review of the state’s election activity without the traditional deference it reserves for state court interpretations.
The U.S. Supreme Court denied the motion to expedite on January 11, 2021.
On February 22, 2021, the Court denied the petition to hear this case.
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