President Trump filed suit against the Wisconsin Elections Commission (WEC), Secretary of State La Follette, and Governor Evers, claiming that they violated Wisconsin Election Code in their administration of the November 3 election. In 2015, the Wisconsin Legislature created the six-person bi-partisan Commission to oversee elections and election campaigns and issue advisory opinions to promulgate the rules in keeping with the Legislature’s election laws. The complaint alleges “purposeful disregard of thoughtful legislative safeguards meant to prevent absentee ballot fraud and to promote uniform treatment of absentee ballots throughout the State.”
President Trump argued that the WEC had violated the Electors Clause of the U.S. Constitution by issuing guidance that substantially departed from state law and thereby altered the manner by which Wisconsin voted and appointed electors. 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.
U.S. Constitution: Article II, Section 1, Clause 2
Perhaps the most significant departure from Wisconsin election law was the abandonment of Photo ID for first-time absentee ballot applications, citing Covid-19 as a sufficient excuse. The WEC provided guidance allowing people to claim that Covid-19 alone rendered them “indefinitely confined,” a category statutorily reserved for people who are indefinitely confined by age, physical illness or infirmity, or disability. The statute clearly requires photo ID for first-time absentee ballots, and the WEC guidance includes a line stating that this category should not be used simply to avoid Photo ID.
Some application of this guidance further diluted the already compromised guidance by encouraging voters to select this category. One Milwaukee County Clerk emailed this guidance and posted it on his FaceBook page. Although he was later reprimanded by the WEC, the damage was done. In 2019, 72,000 voters were “indefinitely confined.” In 2020, that number soared to 244,000.
In addition to the “indefinitely confined” issue, the complaint flagged two other issues: missing or incomplete witness certificate addresses and unmanned absentee ballot drop boxes.
Given President Trump’s small margin over Hillary Clinton in 2016, Wisconsin was expected to be a battleground state in 2020. The complaint states that Wisconsin election officials should have been on high alert and enforced, rather than relaxed, statutory safeguards.
President Trump asked the court to remand the case to the Wisconsin Legislature to review the violations and determine what remedy the Legislature could impose. As with most election litigation, the DNC moved for and was granted the ability to intervene on behalf of the WEC.
In a December 12 decision, the District Court described President Trump’s complaint and remedy as extraordinary and dismissed the complaint with prejudice. District Judge Brett Ludwig explained why the court determined that President Trump’s claims failed as a matter of law and fact.
First, he dismissed Defendant WEC’s argument that President Trump lacked standing because he had “suffered an injury in fact” in losing Wisconsin’s electoral votes and the injury was traceable directly back to the WEC’s actions. He also recognized that President Trump’s claims were not frivolous and did need to be addressed on the merits. Despite the WEC’s argument that the claims were moot because President Trump waited until after the election and certification of the vote to file them, Judge Ludwig wrote that federal statute 3. U.S.C. §6 allows for a subsequent certificate of determination upon the conclusion of all election challenges. He also referenced a state court appeal that had not yet been resolved (Trump v. Biden) but chose to proceed on deciding the merits of the federal law claims because “the issues raised in plaintiff’s complaint are obviously of tremendous public significance.”
However, he wrote that the complaint ultimately failed on the merits in that the word “Manner” in the Electors Clause simply referred to the method by which a state would appoint electors. Historically, states could appoint electors by “state legislatures, by general ticket, by districts, and by majority vote.” The Wisconsin Legislature decided on a popular vote to be the “Manner.” Judge Ludwig wrote that President Trump had conflated the method of voting and the administration of the election. Further, he wrote that the record did not show a “significant departure from the legislative scheme” that would impact the chosen method.
On that same day, President Trump appealed to the 7th Circuit Court of Appeals.
The Circuit Court chose to decide this case without oral arguments, stating that the briefs and report “adequately present[ed] the facts and legal arguments.” Circuit Judge Scudder, writing for the court, agreed that President Trump had standing to bring this case and that a federal question existed such that the court had jurisdiction to hear the case. He also agreed with the lower court’s judgment that the claim failed under the Electors Clause but, contrary to the lower court, he emphasized the delay in bringing challenges to Wisconsin law that were the foundation for the federal question.
Judge Scudder wrote that the doctrine of laches voided President Trump’s right to bring a case because he had waited too long to sue. In other words, the Circuit Court decided that the challenges should have been raised prior to the election and not after the vote had been certified as final. [Note, had the challenges been brought prior to the election, would the District Court have found a sufficient injury to support President Trump’s standing to bring the case in the first place?]
Consequently, on December 24, the Circuit Court affirmed the lower court’s decision, not based on laches but on the Electors Clause.
President Trump filed a petition for certiorari to the U.S. Supreme Court on December 30, 2020.