President Trump, Vice President Pence, and the Trump Campaign petitioned the Wisconsin Supreme Court to issue a declaratory judgment voiding Governor Evers’ certification of the election and ordering the state to exclude defective ballots from the recount total, especially given that Evers attempted to certify the election and name Wisconsin’s electors “prior to closing out the post-recount [statutory] appeal deadline,” which is five days after the completion of the recount. This is a “petition for leave to commence an original action” after the Wisconsin recount that was paid for by the Trump Campaign.
The petition addresses questionable patterns of activity in Milwaukee and Dane counties, calling attention to four types of ballots that were in direct conflict with Wisconsin law and improperly counted:
- 170,000 “in-person” absentee ballots without the statutorily mandated written application,
- 5,500 absentee ballots with incomplete witness certifications that were subsequently altered by election clerks,
- 28,000 absentee ballots cast by people who did not submit photo ID, claiming “Indefinite Confinement” status, despite reliable information that they no longer qualified as such, and
- 17,000 absentee ballots cast or received at “Democracy in the Park” events, despite not being legally established alternate ballot sites.
On December 3, the Court denied the petition. Justice Hagedorn concurred with the majority and added that the complaint should be filed in the circuit court because there were “important factual disputes, supported at times by competing affidavits.”
Justice Roggensack dissented, noting that the Court did have subject matter jurisdiction under the Wisconsin Constitution and could not be superseded by the statute the majority reference. And since time was of the essence, she would have referred the case to the circuit court to examine the record, conduct fact-finding, and return a report to the Wisconsin Supreme Court to decide the important legal questions with a more complete foundation. “If the WEC has been giving advice contrary to statute, those acts do not make the advice legal.” Finally, she was concerned that the public would misunderstand the denial of the petition. “[S]ometimes, we deny petitions even when it appears that a law has been violated.”
Justice Bradley also dissented. “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.” She was concerned that leaving unresolved the important questions petitioners raised would undermine the integrity of Wisconsin’s ability to conduct elections in this and future election. “Alarmingly, the court’s inaction also signals to the WEC that it may continue to administer elections in whatever manner it chooses, knowing that the court has repeatedly declined to scrutinize its conduct.”
And finally, “The consequence of the majority operating by whim rather than rule is to leave the interpretation of multiple election laws in flux—or worse yet, in the hands of the unelected members of the WEC.”