Judicial intervention is necessary when Constitutional lines have been transgressed in a presidential election. Such intervention does not undermine constitutional democracy, it preserves it.
– Petition for Writ of Certiorari, p. 27
On December 30, 2020, President Trump filed a petition with the U.S. Supreme Court to review lower court rulings in Trump v. Wisconsin Elections Commission (WEC). The case below had been dismissed by both the U.S. District Court and the 7th Circuit Court of Appeals, but for different reasons. The District Court agreed that President Trump had a right to bring the case because he had suffered an injury, the complaint was not late, and the issue was of significance but dismissed the complaint based on an interpretation of the word “Manner” from the Electors Clause of the U.S. Constitution. The Circuit Court ignored the lower court’s decision that the case was timely filed but unilaterally brought up the judicial doctrine of laches and included this rationale in its dismissal.
The petition raised the following questions:
Whether WEC and local election officials violated Art. II, § 1, cl. 2 of the United States Constitution and the Fourteenth Amendment’s guarantee of Equal Protection during the 2020 Presidential election by implementing unauthorized absentee voting practices in disregard of the Wisconsin Legislature’s explicit command that absentee voting must be “carefully regulated” and absentee ballots cast outside of the Legislature’s authorized procedures “may not be counted”?
Whether this Court should declare the Wisconsin election unconstitutional and void under Article II and thus failed under 3 U.S.C. § 2 and allow the Wisconsin Legislature to appoint its electors?
Whether federal courts may rely on the doctrine of laches to avoid reviewing Electors Clause or Equal Protection claims arising after absentee balloting began or which could not have reasonably been brought before absentee balloting commenced?
President Trump argued that the number of ballots cast in violations of the Electors Clause was greater than Joe Biden’s margin of victory, rendering the election void as it was impossible to determine which candidate had actually received the most lawful votes. In addition to referencing to departure from stringent regulation of absentee ballots, the petition calls attention to actions that were taking knowingly in contravention of the strict election laws – the creation of drop boxes.
On April 3, 2020, Governor Tony Evers issued an executive order that, among other provisions, allowed absentee ballots to be delivered to drop box locations. The order also called the Legislature into a special session on April 4, 2020, to consider the actions, but the Legislature did not approve them. Since the primary election was scheduled for April 7, 2020, the Legislature asked the Wisconsin Supreme Court to exercise original jurisdiction and stop Governor Evers orders, which they did, stating, “the failure to enjoin this action would irrevocably allow the Governor to invade the province of the Legislature by unilaterally suspending and rewriting laws without authority.” Click here to read the opinion.
In June, five Democratic Mayors used private funding, unauthorized by the Legislature, from the Center for Tech and Civic Life to implement drop-boxes to facilitate the return of absentee ballots in their five heavily democratic cities. Then on August 19, and despite the Legislature’s rejection of the April executive order and court affirmation, the WEC issued guidance that endorsed unmanned absentee ballot drop boxes and provided detailed instructions for their implementation. Nowhere in the Wisconsin Election Code is there authorization for such a delivery mechanism. In order to reduce fraud and maintain a clear chain of custody, the Code identifies only two options for returning an absentee ballot:
“The envelope [containing the absentee ballot] shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.” Wis. Stat. § 6.87(4)(b)1
Despite the code, the rejected executive order, and the Wisconsin Supreme Court affirmation to enjoin the executive order, more than 500 unmanned absentee ballot drop boxes were used in Wisconsin for the 2020 presidential election.
“[N]ot only does the Election Code make clear that unmanned absentee ballot drop boxes are not authorized, the Legislature’s explicit rejection of the Governor’s effort in April to impose drop boxes makes this doubly clear. If the Governor believed drop boxes were permitted under the Election Code, there have been no reason to include them in his April 3, 2020, Executive Order.”
– Petition for Writ of Certiorari, p. 31
The petition also raised objections to the alteration of absentee ballot witness certificates, arguing that Wisconsin law invalidates ballots with incomplete witness information. Instead of signature verification to confirm a voter’s identity, Wisconsin requires a witness to verify the legitimacy of the ballot. In March 2020, the Democratic National Committee filed suit against the WEC, among others, to prevent enforcement of the witness requirement (Democratic Nat’l Comm. v. Bostelman). In April, the District Court granted the request, provided that the voter signed a statement that they could not safely find a witness. The Circuit Court stayed that part of the decision because it had concerns about the “overbreadth of the district court’s order, which categorically eliminates the witness requirement applicable to absentee ballots and gives no effect to the state’s substantial interest in combatting voter fraud.”
While the witness requirement was sustained for the primary election, the WEC instructed clerks to take corrective action to remedy address errors for the presidential election. As part of an October 19, 2020 notice, the WEC wrote, “Please note that the clerk should attempt to resolve any missing witness address information prior to Election Day if possible, and this can be done through reliable information…personal knowledge… [or] voter registration information. The witness does not need to appear to add a missing address.”
Finally, the petition discussed the unauthorized circumvention of statutory photo ID laws for first-time absentee ballot applications. A voter who was “indefinitely confined,” and thereby unable to provide photo ID, could request an absentee ballot if they were disabled due to limitations from age, physical illness, infirmity, or disability. Fear of illness or infirmity was not an option. This issue began in March 2020 before the primary election in April, as had the first two issues raised in this petition. County clerks in Dane and Milwaukee counties issued social media messages encouraging voters to declare themselves indefinitely confined. Within a few days, the WEC issued more guidance stating that this category should not be used solely to avoid photo ID requirements, but strangely limited clerks’ ability from requesting or requiring proof of this designation.
While this issue was called out early on and taken to the Wisconsin Supreme Court for adjudication, the case (Jefferson v. Dane County) was not decided until December 14, 2020, well after the presidential election. As a result, about 240,000 voters avoided presenting photo ID when voting by absentee ballot, up from 66,611 in 2016.
These issues were first raised in the District Court. As noted above, the court expressly declined to use the doctrine of laches to dismiss the complaint as if it were brought too late. It did, however, interpret the word “Manner” from the Electors Clause very narrowly and determined that it limited the state legislature to appointing electors directly or by popular vote. The court found that the administration of the election was not covered by this word. The court also held that the WEC was a creation of the legislature and as such, could not violate the legislature’s “Manner” for administering the election.
On appeal to the 7th Circuit Court of Appeals, the complaint was dismissed due to timing, despite that not being an issue in the lower court. The ruling stated that the “President had a full opportunity before the election to press the very challenges to Wisconsin law underlying his present claims. Having foregone that opportunity, he cannot now – after the election results have been certified as final – seek to bring those challenges.” The court then affirmed the narrow interpretation of the word “Manner” as limited to a choice between popular vote or legislative selection.
President Trump asked the U.S. Supreme Court to grant the writ of certiorari because:
- The lower courts’ decisions to allow the Wisconsin executive branches to violate the Electors Clause was in conflict with decisions from the U.S. Supreme Court that recognized damage to the faith in the power of the people to oversee their own government when the authority of the legislature to set election rules was usurped.
- The Wisconsin Election Officials violated the Electors Clause by authorizing unmanned ballot boxes, authorizing clerks to alter witness signatures, and by encouraging voters to self-identify as “indefinitely confined.”
- The 7th Circuit Court of Appeals’ construction of the word “Manner,” would “sap all vitality from the Electors Clause” if not reversed, noting that the 2000 decisions in Bush v. Gore recognized that the Electors Clause was not limited to whether a state selects electors by popular vote or other means.
- Wisconsin violated Equal Protection through unsecured absentee ballot drop boxes that did not explicitly protect against fraud and vote dilution.
- The 7th Circuit’s use of the doctrine of laches should not control when important public rights are involved because all Americans, not just President Trump, have an interest in upholding the Constitution. When combined with other precedential rulings on elections, it would make it impossible for candidates to bring a challenge because they would be barred prior to an election under the Purcell principle that disallows changes close to an election but barred after the election for lateness.
Along with this petition, President Trump filed a motion to expedite the case so that it could be resolved before the January 6, 2021 counting of electoral votes in Congress and before the inauguration of Joe Biden on January 20, 2021. The motion was denied and all the Respondents – members of the WEC and the executive branch – waived their right to respond.
The case is distributed for conference March 5, 2021 when the Court will decide whether to hear this case.
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