After the November 3, 2020 Presidential Election in which Joe Biden had an unofficial margin of 0.62%, the Trump Campaign (“the Campaign”) petitioned the court and paid for a recount of votes in Dane and Milwaukee counties. On December 3, 2020, President Trump, Michael Pence, and the Trump Campaign (“Trump Campaign” filed a notice of appeal, naming Joe Biden and others as respondents, in the Wisconsin Superior Court. The Trump Campaign wanted to challenge the final recount determinations in those two counties. The lower court affirmed the recount totals, and the Trump Campaign appealed to the Wisconsin Supreme Court.
The appeal presented three questions:
- May the State of Wisconsin establish mandatory procedures for absentee voting by law?
- Were the procedures established by the laws of the State of Wisconsin for absentee voting complied with in Dane and Milwaukee Counties in the November 3, 2020 election?
- Are the remedies prescribed by Wisconsin’s election laws for violations of absentee-voting requirements mandatory?
While relief was denied by Wisconsin’s highest court, yet again under the evasive cloak of procedural technicalities, three justices wrote scathing dissents to underscore how the allegations of election misconduct and unlawfulness remained unaddressed in a disservice to the people of Wisconsin. (It is worth reading these dissents, starting on page 34 of the pdf for Wisconsin Supreme Court’s opinion).
The underlying issues all relate to absentee voting statutory violations as follow:
- Municipal clerks failed to obtain written applications prior to allowing in-person absentee voters the opportunity to complete a ballot,
- Incomplete ballot envelopes were selectively altered to cure witness information omissions, thereby allowing their respective ballots to be incorrectly counted,
- Covid-19 was used as an excuse to change absentee voting by encouraging people to define themselves as “indefinitely confined” and ignore the photo ID requirements, and
- “Democracy in the Park” events, heavily promoted by the Biden campaign, were held in Madison as alternate absentee ballot polling sites despite strict laws against advance voting.
The Campaign sought to have votes collected through these avenues removed from the final count as Wisconsin statutes clearly show that they were not cast in accordance with longstanding law and practice.
Justice Hagedorn, writing for the 4-3 majority, sided with the Respondents (Biden, Harris, Wisconsin Elections Commission, Dane and Milwaukee Canvassers, etc.) and determined that one challenge was without merit and that the other three challenges failed under the (otherwise rarely used) doctrine of laches, meaning the claim was brought after an inexcusable delay.
Justice Hagedorn took issue with the Campaign’s request to invalidate all votes cast by voters claiming indefinitely confined status in Dane and Milwaukee counties. Despite the Campaign only seeking to invalidate these votes in two of Wisconsin’s 72 counties, and only those that were cast after a Facebook message encouraging voters to select this category regardless of any legitimate disability, Justice Hagedorn took issue with “this blanket invalidation.” He acknowledged that the Facebook “advice” was erroneous but took issue with striking voters as a class, rather than as individuals.
Justice Hagedorn struck down the other three challenges under the discretionary doctrine of laches, citing a 2019 case, “Laches is founded on the notion that equity aids the vigilant, and not those who sleep on their rights to the detriment of the opposing party.“ In three powerful dissents (below), Justices Roggensack, Ziegler, and Bradley discussed how the majority routinely hid behind this doctrine to avoid answering questions of law but that laches “does not and should not bar this case.”
- Written Applications. The Campaign argued that the “application” given to voters was not an application but rather an “El-122” envelope within which a completed ballot was placed. In all 70 other Wisconsin counties, voters filled out a written application first, not just an envelope. But Justice Hagedorn appears to have ignored the distinction and instead determined that this “envelope” practice was the norm in Milwaukee and Dane counties and as such, the Campaign should have challenged its sufficiency before the election.
- Missing Witness Information. As recently as 2015, the Wisconsin Legislature made clear that the ballot envelope certificate needed to be fully and accurately completed by the voter and the witness, and that the remedy for an incomplete certification was to return it to the sender. In what seems a nonsensical comment, Justice Hagedorn wrote, “[w]hile a witness address must be provided on the certification for the corresponding ballot to be counted, the statute is silent as to what portion of an address the witness must provide.” And in a more serious rationalization, Judge Hagedorn overlooked the unlawful correction of missing information authorized by the Wisconsin Elections Commission and instead determined that since this illegal practice had been in use for a few years, the Campaign should have challenged it sooner.
- “Democracy in the Park”. On September 26 and October 3, 2020, the city of Madison placed poll workers in 206 locations, mimicking polling places and acting as an election with the exception of distributing ballots. Poll workers collected completed absentee ballots and served as witnesses for electors who brought unsealed blank ballots. The statute required alternate polling sites to be designated no fewer than 14 days prior to the time that absentee ballots are available for the primary. Justice Hagedorn overlooked the clear statutory violation and instead focused on the timing of the challenge, noting that it should have been raised when the illegal events were announced.
This opinion was followed but a series of three tough dissents, beginning with a quote from U.S. Supreme Court Justice Antonin Scalia,
“Legal opinions are important, after all, for the reasons they give, not the results they announce; results can be announced in judgment orders without opinion. An opinion that gets the reasons wrong gets everything wrong which is the function of an opinion to produce.”
Justice Roggensack wrote in apparent frustration that her colleagues had not addressed what the statutes required to assure absentee ballots had been lawfully cast. She noted that the standard of review for post-election challenges required a review of the determination of the boards of canvassers, not of the lower court, and an interpretation and application of Wisconsin statutes. Justice Roggensack drew a distinction between examing challenges to election law and finding a remedy for violations, and called out the Wisconsin Elections Commission, writing that “[i]t is unfortunate that WEC has such sway, especially when its “guidance” is contrary to the plain meaning of two statutes.”
In a scathing conclusion, Justice Roggensack wrote,
“The majority does not bother addressing what the boards of canvassers did or should have done, and instead, four members of this court throw the cloak of laches over numerous problems that will be repeated again and again, until this court has the courage to correct them. The electorate expects more of us, and we are capable of providing it.”
Justice Ziegler dissented as well, criticizing Justice Hagedorn for not seeking clarity in Wisconsin Election law and instead called him out for not fulfilling their constitutional duty to declare what the law is.
“Instead of undertaking the duty to decide novel legal issues presented, this court shirks its institutional responsibility to the public and instead falls back on a self-prescribed, previously unknown standard it calls laches.”
Justice Ziegler accused the majority of reiterating “respondents’ soundbites” and “conjur[ing] up an artificial deadline,” implying that the doctrine of laches “has never been the law.” She wrote that she was interested not in particular outcomes but in the court fulfilling its constitutional responsibility by answering questions not only for this election but for elections to come.
Justice Ziegler broke down the incorrect application of the doctrine of laches by attacking each of its elements, none of which were met:
- No Unreasonable Delay. Petitioners did not “unreasonably delay” their ballot challenges because there was nothing to challenge until after the ballots were cast and the recount was complete,
- Knowledge that Ballots would be Challenged. The majority accepted Respondents’ claim that they did not know the ballots would be challenged, despite President Trump’s numerous tweets that he would “challenge the results and prove certain ballots were impermissibly cast,” and the fact that the Campaign expressly stated why they planned to challenge the ballots in their petition for a recount.
- Respondents’ Lack of Prejudice. Neither evidentiary prejudice – the impairment of a successful defense due to the passage of time – nor economic prejudice – the cost to the defense increasing significantly due to the delay – existed. All the respondents had filed briefs and none claimed that costs were an issue.
As Respondents did not prove any of these elements, the Court should not have presumed that they were met. And even if they had been met, the doctrine of laches is discretionary so the Court could have addressed the merits of the case and thereby bolstered confidence in this and future elections.
Justice Bradley dissented from the majority opinion with a discussion on the dangerous subordination of Wisconsin law to administrative bodies and the injustice that followed for the people of Wisconsin.
“When the state’s highest court refuses to uphold the law, and stands by while an unelected body of six commissioners rewrites it, our system of representative government is subverted.”
Justice Bradley cited the Wisconsin legislature in distinguishing the constitutional right to vote from the privilege of voting by absentee ballot that is “exercised wholly outside the traditional safeguards of the polling place” and must therefore be “carefully regulated to prevent the potential for fraud or abuse.” She reaffirmed the court’s long-held application of the law that “an act done in violation of a mandatory provision is void,” such that an absentee ballot cast in contravention of the law may not be counted, and if it is counted, it must not be included in the certified result of an election. The board of canvassers had a duty to invalidate votes cast and counted in such a manner, independent of any legal challenge that may or may not be brought.
Justice Bradley closes with several impassioned references to old cases and long-standing principles about the rule of law and true democracy. Going back to 1784, she cites Lord Mansfield,
“To be free is to live under a government by law . . . . Miserable is the condition of individuals, danger is the condition of the state, if there is no certain law, or, which is the same thing, no certain administration of the law[.]”