I would say, “It’s all over but the shouting,” except there’s been nothing but shouting since November 3. Anyway, with the quick progression of the Supreme Court’s tossing of the Texas lawsuit on Friday evening, a Trump-appointed federal judge’s rejecting the Trump campaign’s lawsuit on Saturday, and the Electoral College’s voting 306–232 for President-elect Biden on Monday, President Trump’s post-election litigation effort is at an end.
Still, a couple of cases that the highest state courts of Georgia and Wisconsin disposed of in the interim merit some discussion. The resolution in Georgia is procedural and confusing, and tells us nothing of substance. Wisconsin, however, is intriguing, and reporting about it has been confusing. Bottom line: Biden won, but probably by about only half of the thin victory margin — 20,682 — that has been reported.
We’ve previously observed that the Trump lawsuit filed in Fulton County Superior Court in Georgia appeared stronger than the campaign’s prior lawsuits. It itemized categories of allegedly illegal ballots and purported to count those votes with exactitude. It was impossible to evaluate how substantial these claims were, though, because much of the data said to support Trump’s claims were unavailable.
In the end, the case, Trump v. Raffensperger, was shelved without being resolved on the merits.
There were some clerical errors with the manner in which the complaint was filed, necessitating a re-filing. By then, with the federal safe-harbor deadline having passed and the Electoral College vote impending, there was not time, realistically, to test the campaign’s claims in a trial court. The president’s counsel thus sought emergency relief in the Georgia Supreme Court, asking for the court to consider the case in its original jurisdiction (i.e., as if it were the trial court — much like Texas attempted to invoke the U.S. Supreme Court’s original jurisdiction). On Saturday, Georgia’s top court denied the campaign’s emergency application.
As a practical matter, that means the litigation, if pursued, would have to proceed on the customary slow track. That presumably defeats the purpose, since it could not be resolved in time to be meaningful. (Georgia has just ten electoral votes, so even if President Trump were to prevail there, it would not reverse Biden’s overall victory.)
The litigation in Wisconsin state supreme court warrants more discussion. Readers may recall that earlier in December, that tribunal declined to review the campaign’s claims of voting improprieties, referring the case to a lower court — unreasonably, in my view, because the claims appeared legally valid (although unlikely to reverse Biden’s apparent victory-margin of about 20,000) and the safe-harbor deadline was just five days away. Nevertheless, the Trump team dutifully presented their case to the lower court, which ruled against the president. To the judge’s credit, he did so rapidly enough to give Team Trump a chance to appeal to the Wisconsin Supreme Court.
That court ruled against Trump on Monday, just hours before the Electoral College vote began at state capitals throughout the country. It has been generally reported that the decision in Trump v. Biden was 4–3. That does not really tell the story because the court’s analysis and vote varied with each of the four discrete claimed violations.
As one would expect, there was significant overlap between the allegations in the state litigation and the ones rejected on the merits over the weekend by Judge Brett H. Ludwig of Wisconsin’s federal district court. The federal ruling was such a backbreaker for the president that the state ruling got less attention than it otherwise would have.
The seven-judge state supreme court is collectively centrist. As we’ve seen, Justice Brian K. Hagedorn, a moderate originally appointed as an appellate judge by the state’s conservative Republican former governor, Scott Walker, occasionally votes with the three more liberal justices. On December 4, Justice Hagedorn was in the 4–3 majority that refused at that point to hear the case. The line-up was the same in Monday’s ruling.
1) Absentee Voting Is a Privilege, Not a Right
The Trump campaign’s overarching complaint, as it was in the federal case, is that it is for state legislatures, not bureaucrats, to prescribe how elections are conducted. In the federal case, Judge Ludwig concluded that Trump was conflating the state legislatures’ constitutional power to dictate the manner of elections (which he took to be by popular vote in Wisconsin, as in all states) with the means by which elections are conducted — i.e., the administrative practices that state legislatures routinely delegate to bureaucracies, as Wisconsin’s has to the Wisconsin Elections Commission (WEC).
In light of this, Judge Ludwig deferred broadly to the WEC. By contrast, the state supreme court was less deferential — especially the three dissenters, led by the tribunal’s chief justice, Patience D. Roggensack. The reasons for this are worth spelling out.
Unlike many states, Wisconsin prudently looks with disfavor on absentee and mail-in voting. State law deems election integrity paramount. The most secure means of voting is to have voters physically cast a ballot at the polling place. This policy preference has ramifications. In-person voting is considered a right; thus, when doubt arises about a vote’s propriety, the law leans in favor of counting the vote. To the contrary, absentee voting is considered a privilege. It does not get the same benefit of the doubt as in-person voting. If an absentee ballot does not comply with the conditions prescribed by the legislature, state law says it shall not count. Moreover, while administrative bodies, such as the WEC, are free to interpret and complement legislative statutes in carrying out their mission, they may not contradict those statutes.
This point goes to a common divide between conservative and progressive jurists. The former maintain that statutes mean what they say, and that unelected bureaucrats are not at liberty to rewrite them under the guise of interpreting them for practical application.
Progressive judges, who favor the administrative state and the notion that bureaucrats are nonpartisan professionals promoting good governance, are inclined, on the contrary, to favor administrators who try to achieve “justice.” And, for progressives, it’s more important to obtain this justice than to woodenly apply statutes — if such application would lead to results perceived as unfair. Furthermore, progressives favor absentee and mail-in voting for what is dubiously insisted to be the greater good of maximizing voter participation.
So, to the extent there is a policy favoring in-person voting at the polling place on Election Day over early and/or remote voting, liberals push to erode it, while conservatives seek to fortify it.
2) Equal Protection of Law
There is another general point to be made, regarding a major weakness in the Trump campaign’s effort to invalidate votes. It focused on WEC’s flouting of statutory law in two counties, Milwaukee and Dane (where Madison is). But most of the WEC practices to which the campaign objects were followed throughout Wisconsin — all 72 counties. Consequently, if Trump had his way, he would knock out votes from these two Democratic strongholds that went heavily for Biden, but leave the rest of Wisconsin undisturbed, even though the cited irregularities plague ballots statewide.
This is ironic given that, throughout its post-election litigation, the campaign has relied on Bush v. Gore (2000) for the proposition that voters must be treated uniformly across a state; otherwise, the voters who get worse treatment are denied their constitutional right to equal protection of law. The Trump campaign’s proposal to disenfranchise only some voters (likely Biden voters) while counting flawed ballots cast by likely Trump voters would itself violate the campaign’s interpretation of Bush v. Gore (a point that was not lost on the Wisconsin Supreme Court — see opinion, p. 17 n. 12).
3) The Four Categories of Allegedly Illegal Ballots and Confusion about the ‘Laches Doctrine’
Let’s turn to the four violations of state election law posited by the Trump campaign. Because courts will generally entertain only claimed improprieties that could have made a difference in the outcome, I am including in each category the number of votes claimed to have been illegal — mindful that Biden is presumed to have won the state by 20,682 votes. The president alleges:
- 28,395 voters were permitted to submit absentee ballots by claiming the “indefinite confinement” exemption after erroneous guidance was issued by county officials.
- 170,151 were permitted to submit absentee ballots after submitting forms (used statewide) that did not qualify as required applications for absentee ballots under state law.
- 5,517 absentee voters were permitted to submit absentee ballots even though their required witnesses incompletely filled out their addresses on the ballot certifications, which omissions were unlawfully filled in by election officials.
- 17,271 absentee voters were permitted, weeks before Election Day, to submit votes to volunteer poll watchers at “Democracy in the Park” events in Madison.
Combined, this aggregates to a total of 221,334 allegedly illegal votes. It is important to break them out categorically. First, notice again that no fraud on the part of the voters is alleged. All of these claims involve voters who, with no cause to believe otherwise, cast ballots on the assumption that state officials were acting lawfully. Between that fact, and the fact that the Trump campaign wanted to void not all votes but only likely Biden votes (in heavily blue Milwaukee and Dane Counties) in these categories, it becomes clear that canceling out these 221,334 votes across the state would have been unfair, even if they were all technically illicit.
Second, they were not all illicit. In fact, the vast majority of them were undeniably lawful — even under the dissenting justices’ analysis.
It is vital to understand this because some of the president’s allies are peddling a whopper, namely, that all 221,334 votes in question were acknowledged to be illegal, but the court’s left-wing justices used the “laches doctrine” (the rule that litigants may not unduly delay in objecting to prejudicial wrongs) as a pretext to avoid admitting that Trump won the state. That is not what happened. The story has some legs, though, owing to the peculiar way in which the opinions are written — the court’s majority opinion written by Justice Hagedorn, a concurring opinion weirdly added by Hagedorn (yes, he agrees with himself!), another short concurrence add by two justices, and separate opinions from all three dissenting justices, including the most important one from Chief Justice Roggensack, which goes through the four categories of ballots described above.
The majority did indeed invoke laches, but only as to three of the four categories. And even that overstates the doctrine’s use: Laches was only arguably necessary to save ballots in the two categories that account for the fewest votes.
a) Indefinite Confinement
Specifically, on the issue of voters claiming the “indefinite confinement” exemption, the entire court agrees that Trump’s claim was meritless. The Trump campaign did not attempt to identify a single voter who fraudulently claimed this status. Rather, the president sought to void all indefinite-confinement absentee votes based on an erroneous suggestion, posted on Facebook by the Dane and Milwaukee County clerks, that all voters could claim indefinite confinement due to the pandemic.
This incorrect suggestion was corrected within a few days by the state supreme court, relying on accurate guidance from the WEC. The court’s majority thus rejected the campaign’s claim, and the dissent agreed there was nothing more to be done on this given Trump’s failure to allege particular wrongful invocations of indefinite-confinement status. That is, the vote on these 28,395 ballots was 7–0 against the president.
b) Application Forms
On the issue of the forms used by Milwaukee and Dane Counties to enable voters to apply for absentee status, the majority faulted the Trump campaign for laches. Nevertheless, Justice Hagedorn, in his concurrence joined by one other justice, and Chief Justice Roggensack, in her dissent joined by two other justices, rejected the campaign’s argument that the forms did not qualify as applications under state law. Therefore, quite apart from laches, five of the seven justices ruled against the campaign on the merits. That is, on these 170,151 ballots, the vote was 7–0 against the president, with at least five justices rejecting the claim on the merits, and no more than two relying on laches.
With those two findings, then, the court held that 198,546 of the disputed ballots were legitimate. That reduces the total number of potentially illegitimate votes to 22,788. Even though this number is greater than Biden’s victory margin of 20,682 votes, there is no way it could have sufficed to reverse the outcome — even if you believe, as I do, that the dissenters had the better of the argument on the other two categories. Let’s turn to those.
c) Clerks Filling In Missing Witness-Address Information
On the matter of the clerks offices’ filling in missing witness-address information, the court voted 4–3 against Trump, relying on the laches doctrine. There are 5,517 votes in this category, but it is unknown how many of these would have been disqualified but for the clerks’ curative actions.
The dissenters convincingly argue that this practice of the clerks is illegal under Wisconsin law. Remember, the state’s policy is that absentee voting is a privilege and is not encouraged; therefore, there must be strict compliance with the statutory conditions for the votes to count. The fact that this flawed practice regarding witness addresses has been followed a number of times since 2016 does not make it legal. The application of the laches doctrine is suspect at best: While the Trump campaign could have complained before the election, the illicit actions did not happen until after the voting took place.
All that said, (i) some undetermined number of the ballots would have been legally sufficient even if the clerks had not perfected some aspect of the address (e.g., if the witness omitted the zip code but the address was otherwise accurate); (ii) there is no way all 5,517 address-corrected ballots were Biden votes; (iii) it would not be fair to cancel such ballots only in Milwaukee and Dane when the practice was followed throughout the state; and (iv) while the majority’s laches analysis may not be compelling, neither is it frivolous — the practice was well established, and given that Trump is willing to tolerate it for ballots in 70 other counties, he should have given the two heavily Democratic counties notice that he objected to their use of it.
d) Democracy in the Park
The Democracy in the Park events at 200 locations involved 17,271 ballots. The court voted 4–3 against Trump, relying on the laches doctrine to excuse any illegality.
The dissenters are correct that the arrangements for collecting ballots at these events did not comply with governing law. By statute, absentee ballots must be submitted to state election officials, not volunteer “poll-watchers” who are not agents of the state. Laches is not a convincing rationale for turning a blind eye to this violation of election law — and by invoking it, the majority hurts the cause of preventing a recurrence.
Still, invalidating the 17,271 absentee ballots generated by these events would not change the outcome of the election. As with the 5,517 ballots on which clerks filled in some witness-address information, the Democracy in the Park ballots would not all be Biden votes — some minority percentage of them would have been for Trump (more on that point momentarily).
Conclusion on Wisconsin — 2020 and Going Forward
Going forward: Wisconsin should make clear that events such as Democracy in the Park and the practice of permitting bureaucrats to correct ballot-certification deficiencies should be banned because they violate state law. Even though the absentee-vote application forms passed muster, they should be revised if their current iteration causes confusion. The legislature should also reaffirm that Wisconsin favors in-person voting, and that because absentee voting is a privilege, absentee voters bear the risk that failure to comply with any statutory condition will result in the rejection of their votes.
In the here and now: It is apparent that Joe Biden’s victory margin in the Badger State should have been less than 20,682, perhaps markedly less.
If all of the 17,271 Democracy in the Park ballots were discounted, and we assume a 3:1 ratio favoring Biden (the margin by which reports indicate he won Dane County), he would suffer a net loss of about 9,000 (i.e., assuming Biden and Trump would lose about 13,000 and 4,000 votes, respectively). Biden’s margin of victory would fall to about 11,000. Trump supporters may think I’m being too conservative, and that we should assume Biden won Democracy in the Park voters by a ratio of 4:1, or even higher. Maybe so, but even if we assume, implausibly, that every single Democracy in the Park ballot was a Biden vote, Trump would still come up short by 3,411.
There is no case for throwing out the ballots in the other three categories. Again, the challenges to both the “indefinitely confined” exemption and the application form were rejected. On the ballots with witness-address issues, we don’t know how many of the 5,571 were so flawed prior to completion by clerks that they would have been invalid; and it would violate equal protection to throw out only the ballots corrected in Milwaukee and Dane Counties.
So, even if the state supreme court was wrong to have relied on the laches doctrine, Joe Biden would still have defeated Donald Trump in Wisconsin. The margin of victory would be closer to 10,000 than 20,000, but the result would not change.
Author’s Note: Two minor mathematical errors have been changed since this column was first published. At one point, referring to President-elect Biden’s victory margin in Wisconsin, which the state supreme court found to be 20,682, I incorrectly stated it as 20,620. Later, I inadvertently used that margin in calculating what Biden’s victory margin would be if all 17,271 Democracy in the Park ballots were subtracted out. Using the correct margin, Biden would have won the state by 3,411, not 3,349 as the column originally stated.