Wisconsin Supreme Court Ducks Trump Campaign Claims of Election Improprieties

The judges are stalling to run out the clock on claims that actually have merit — even if they wouldn’t change the election outcome.

I t is being widely reported that the Trump campaign lost its lawsuit in the Wisconsin supreme court on Thursday. That is not what happened. By a 4–3 vote, and to the consternation of the dissenting judges, the majority claimed in a curt opinion that it could not entertain the case at this point for two reasons, one of which seems weak, and the other, a dodge.

Moreover, there appears just on the face of the opinions to be significant force to the campaign’s claims of impropriety. To be clear, though, this is not a fraud case.

The campaign is alleging that Wisconsin election officials did not comply with state law in administering the voting. It does not appear to be claiming that Trump votes were switched to Biden votes. Nor is it contending that voters who, with the approval of election officials, cast ballots outside the parameters set by state law would have voted for a different candidate if the ballots had instead been submitted in compliance. There is, therefore, no way the court would grant the remedy the campaign seeks; namely, the invalidation of over 200,000 ballots in heavily Democratic Milwaukee and Dane Counties.

Wisconsin has already certified that President-elect Biden won Wisconsin by about 20,000 votes.

The state supreme court majority claims that it cannot properly consider the campaign’s lawsuit. Principally, it reasons that it lacks jurisdiction over the case due to a state statute that makes a civil action filed in the circuit court — i.e., a court inferior to the state supreme court — the “exclusive judicial remedy” for claims of election-law violations.

Yet, it is elementary that a statute cannot override a constitution. If the state supreme court has jurisdiction under the Wisconsin constitution, that jurisdiction cannot be vitiated by a statute purporting to vest it exclusively in the circuit court. In her dissent, the court’s chief justice, Patience Drake Roggensack, argues that the state constitution (in art. VII, sec. 3(2)) explicitly gives the court the power to hear original actions in addition to exercising appellate jurisdiction, and she also says case law supports that conclusion.

Perhaps mindful that the statutory argument is dubious, state election officials also urge an alternative basis for the court to demur: The state and the Trump campaign do not agree on all the facts; consequently, to decide the case, a court will have to do fact-finding. The supreme court, the state posits, is principally an appellate tribunal that does not do fact-finding — that is for the lower courts. Ergo, the case must be referred to the circuit court, which can conduct whatever hearings are necessary and render a decision in the case, after which the Trump campaign, if it loses, can appeal to the supreme court.

The majority was persuaded by this argument, but the judges are just stalling to run out the clock. If the supreme court has original jurisdiction, as the state constitution says it does, it can hear matters before inferior courts do. And, as Chief Justice Roggensack explained, the court could have accepted the case, referred any fact-finding to the circuit court for prompt resolution, and then decided it without waiting for the circuit court to rule. By telling the campaign to go file its complaint in the circuit court, the majority well knew that it was guaranteeing that, even if the campaign has meritorious claims, the state’s highest court will not be able to render a decision before the issues are moot. The state’s electoral votes will already have been cast — that happens in just ten days.

And it does appear that the campaign has meritorious claims — albeit not claims that would alter the result of the election.

As the dissenting judges point out, the campaign raises four issues: (1) Many written requests for absentee ballots were insufficient under state law; (2) information the voter is supposed to provide on the ballot envelop was in many instances missing and was filled in by the election clerk; (3) many voters were permitted to claim eligibility to vote absentee based on their being “indefinitely confined” when, in fact, they were not; and (4) many votes were cast in Madison at “Democracy in the Park” events that took place weeks before the period for voting prescribed by state law (i.e., 14 days before the election).

While fact-finding may be needed, at least some of the state officials have as much as conceded to the court that the second and fourth of these claims are true. For years, the Wisconsin Election Commission (WEC) has apparently been advising clerks to fill in missing information on ballot envelopes and has permitted the acceptance of ballots more than two weeks before Election Day.

Again, these are not fraud claims, notwithstanding the campaign’s public allegations of massive fraud. These are, to the contrary, claims that the WEC, an unelected bureaucracy, has been presuming to violate state election laws, and that voters — having no reason to believe state officials would be acting unlawfully — have understandably relied on the WEC in submitting their votes.

I suspect that this would also turn out to be true with respect to the two other claims, especially claim No. 3: Amid a pandemic, state election officials accepted absentee voters’ representations that they were “indefinitely confined.” In reality, they were not so much “confined” as unwilling to risk voting in person. The Trump campaign is probably right that a large number of votes were accepted on this basis.

It is important to grasp that understandable reliance by voters on state officials is not going to justify throwing out 200,000 votes. Despite being obviously sympathetic to the campaign’s push for expeditious consideration of colorable claims, Chief Justice Roggensack observed that a finding that WEC was in the wrong “does not necessarily lead to striking absentee ballots. . . . The remedy Petitioners seek may be out of reach for a number of reasons.”

The significance of this case, as stressed by Judge Rebecca Grassl Bradley, another dissenter, lies in whether election rules are to be set by the elected state legislature, as the U.S. Constitution provides, or if Wisconsin is going to permit them to be rewritten at will by unaccountable bureaucrats. That is an important matter. It is wrong for the state’s highest court to duck it — which, according to Justice Bradley, it has made a habit of doing in unjustifiable deference to (or, more accurately, reluctance to confront) the WEC.

Nevertheless, this underscores the ships-passing-in-the-night character of the post-election debate. Publicly, the Trump campaign frames every impropriety as “fraud” on a “massive” scale, resulting in election “rigging” without which the president would have been reelected in a “landslide.” The legacy press — in part because it is anti-Trump, in part because it knows Trump will inflate any acknowledgement of irregularities into a concession that the election was “rigged” — reports as if there were no improprieties whatsoever and that the Trump campaign is making it all up (a narrative the Trump campaign aids and abets with its outlandish claims of fraud, including cyber-fraud).

The public is left baffled.

It shouldn’t be that hard to explain. There were election improprieties. They were not sufficiently egregious to justify the disenfranchisement of broad swaths of voters, much less to alter the outcome of the election. But they are serious.

To acknowledge the reality that a certain level of fraud and irregularity is inevitable in any election should not be warped into a rationalization that individual instances of impropriety are tolerable. They are not. They undermine public confidence in our elections and fuel demagogic claims that elections get stolen. They call into question whether the way elections are currently administered is honest, non-partisan, and reliable.

Grown-ups would address them.