A Stunning Passage from the Latest Court Rejection of Team Trump

Election officials process absentee ballots at a central count facility on Election Day in Kenosha, Wis., November 3, 2020. (Daniel Acker/Reuters)

What a Wisconsin federal court’s order turning back another campaign lawsuit tells us about the election-rigging case.

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What a Wisconsin federal court’s order turning back another campaign lawsuit tells us about the election-rigging case.

NRPLUS MEMBER ARTICLE T he most telling aspect of the Wisconsin federal district court’s rejection of another Trump campaign lawsuit on Saturday is so obvious it is easy to miss. And no, it is not that the rejecting was done by a Trump-appointed judge, Brett H. Ludwig, or that it was done on the merits.

After all that’s been said over the last six weeks, this fleeting passage near the start of the court’s workmanlike, 23-page decision and order should take our breath away (my highlighting):

With the Electoral College meeting just days away, the Court declined to address the issues in piecemeal fashion and instead provided plaintiff with an expedited hearing on the merits of his claims. On the morning of the hearing, the parties reached agreement on a stipulated set of facts and then presented arguments to the Court.

A “stipulated set of facts,” in this context, is an agreement between the lawyers for the adversary parties about what testimony witnesses would give, and/or what facts would be established, if the parties went through the process of calling witnesses and offering tangible evidence at a hearing or trial.

In a real controversy, in which one or both of the parties are making hotly disputed factual claims, there are few if any stipulations. For example, a defendant who vehemently denies that he committed stock fraud may be willing to stipulate that 20,000 shares of XYZ Corp’s common stock were sold on December 14; but other than that, the defendant will demand that the adversary call the fact witnesses who claim he defrauded them so he can cross-examine. He will call his own witnesses to show what really happened, and they will be aggressively questioned, too.

Publicly, the Trump campaign has been claiming there was extensive vote fraud and law-breaking. Specifically with respect to Wisconsin, President Trump tweeted on November 28: “The Wisconsin recount is not about finding mistakes in the count, it is about finding people who have voted illegally . . . We have found many illegal votes. Stay tuned!” The campaign further maintained that the recount it demanded would “show somewhere around 100,000 illegal ballots in the two counties that Biden carried” (i.e., Milwaukee and Dane).

This is in addition to the innumerable times the president and his surrogates have asserted that they were being systematically prevented from proving massive fraud and illegality. The courts and state officials, we’ve been told, have invoked legal technicalities, such as the supposed lack of standing to sue, in order to stop the campaign from calling witnesses and introducing voluminous documentary evidence.

So what happened in Wisconsin?

Judge Ludwig denied the state’s claims that the campaign lacked standing. Instead, he gave the campaign the hearing they asked for — the opportunity to call witnesses and submit damning exhibits. Yet, when it got down to brass tacks, the morning of the hearing, it turned out there was no actual disagreement between the Trump team and Wisconsin officials about the pertinent facts of the case. The president’s counsel basically said: Never mind, we don’t need to present all our proof . . . we’ll just stipulate to all the relevant facts and argue legal principles.

In the end, after all the heated rhetoric, what did they tell the court the case was really about? Just three differences over the manner in which the election was administered — to all of which, as Ludwig pointed out, the campaign could have objected before the election if these matters had actually been of great moment.

There was no there there. Despite telling the country for weeks that this was the most rigged election in history, the campaign didn’t think it was worth calling a single witness. Despite having the opportunity of a hearing before a Trump appointee who was willing to give the campaign ample opportunity to prove its case, the campaign said, “Never mind.”

The legal arguments were not much more weighty than the vacant factual presentation.

The Trump team started out as audaciously on claimed constitutional violations as it had been on public allegations of fraud. It claimed Wisconsin officials had run roughshod over the Constitution’s Electors Clause, Due Process Clause, Equal Protection Clause, and First Amendment — the array of allegations they’ve made in other battleground states as well. When it became clear, however, that the court was willing to entertain the president’s case but would scrutinize it closely, the Trump team quickly dropped the First Amendment and Due Process claims. In addition, as Ludwig recounts, the president’s counsel “offer[ed] no clue of a coherent Equal Protection theory,” and “offered neither evidence nor argument to support such a claim.”

So the challenge boiled down to this: Wisconsin had allegedly flouted the Electors Clause, which empowers states legislatures to prescribe the manner of conducting elections, by allowing bureaucrats to change election law under the guise of applying it. The state was said to have done this in three ways. First, it allowed election boards to correct errors and omissions in regard to the addresses provided by witnesses vouching for absentee ballots. Second, as the pandemic tightened its grip, election officials issued guidance informing voters in the elderly and “at-risk” health categories — not all voters — that they might qualify for absentee voting under the state’s “indefinite confinement” exemption. Third, they authorized drop boxes for the submission of ballots.

Ludwig rejected these claims on the merits. As a general matter, he explained that the Constitution gives each state legislature power to prescribe the manner of conducting an election; he concluded that the Trump team was confounding this with the means by which this prescribed manner is carried out.

In Wisconsin (as across the country), the manner of conducting the election is by popular vote, which was done. The means of conducting the popular election has some variations from county to county, but that inevitability has never been of constitutional significance. Even if it were, Wisconsin’s election bureaucracy was created by the state legislature precisely to administer elections and provide procedural guidance for conducting them. Ergo, the fact that the election commission may go beyond the letter of statutes does not mean it is violating state law; it is carrying out the mission state law created it to accomplish: complementing (not contradicting) baseline statutory requirements with administrative procedures.

As for the three specific complaints:

  • Ludwig noted that the practice of allowing election officials to use available information to correct faulty witness-address information began in 2016. That was when Trump won the state by close to the 20,000-vote margin he lost it by this time; and back then, just as this time around, he made no objection to address-correction. The court found the guidance, which apparently affected “at least some absentee ballots,” to be consistent with state law, which disqualifies ballots if the entire address is missing, but does not prohibit correcting flawed addresses.
  • The application of the “indefinite confinement” exemption, which was used by 240,000 of the 3.3 million voters, was in harmony with both state law permitting the election commission to issue guidance and with a ruling by Wisconsin’s state supreme court.
  • In employing 500 drop boxes, the commission relied on guidance from the U.S. Cybersecurity and Infrastructure Security Agency of the Trump administration’s Department of Homeland Security.

In connection with each of these claims, Ludwig observed that the doctrine of laches (sitting on one’s rights too long) could have been applied because the campaign easily could have raised and litigated them pre-election. Nevertheless, the court found there was no need to resort to laches because the Trump complaints, at most, involved “disputed issues of statutory construction” that did not involve “any significant departure from the legislative scheme” for conducting elections.

The lack of a significant claim was especially noteworthy because the campaign’s claims for relief were, Ludwig said, “extraordinary” (emphasis in original). The Trump team was asking the court to declare that 50,000 ballots were “likely” tainted (a comedown from the 100,000 counsel touted in public statements). More eye-poppingly, the campaign was asking the court to invalidate the popular vote (i.e., disenfranchise 3.3 million voters) and remand the case to the state legislature (GOP-controlled) to appoint electors (i.e., to seat the Trump rather than Biden slate to cast the state’s 10 electoral votes) — even though state officials had already certified Biden’s victory in the manner prescribed by state law.

As has been the case since Election Day, the mismatch between the improprieties alleged and the remedy sought was vast, wholly apart from the court’s rejection of the allegations.

Nor can it be ignored that this is not the first time the campaign ducked an opportunity to prove its claims of a stolen election in court. In Pennsylvania, just days before the date a federal judge had set aside for a hearing on the Trump campaign’s complaint, the campaign dropped its fraud charges and agreed that no hearing would be necessary. In Michigan, the campaign dropped its lawsuit after a federal judge threatened to dismiss it for failure to prosecute — nearly a week after filing the case with great fanfare, the campaign had still not served its complaint on the secretary of state.

It has become an article of faith among ardent Trump followers that the election was stolen. The president continues to insist that this is the case, and these flames were further fanned by 19 Republican-controlled state governments, along with 126 Republican members of Congress, who joined the meritless Texas lawsuit, tossed out by the Supreme Court on Friday. The rationalization behind that stunt was that the president has been denied his day in court. But every time a court offers him an opportunity to establish by proof what he is promoting by Twitter, Team Trump folds. Why is that?

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