State Supreme Court Justices Unmasked

In his attempt to overturn the vote of the 2020 presidential election, President Donald Trump tried a variety of strategies. Among them was his claim that the late-night surge in the Biden votes was proof of fraud. In another he claimed that software from a dead Venezuelan dictator was programmed to convert Trump votes into votes for Joe Biden. Texas asked the US Supreme Court to switch the votes from four states Biden won, including Wisconsin, to Trump.

All these schemes were notably unsuccessful in the courts. An estimated 80 judges, including judges he appointed, ruled against him.

A recent case before the Wisconsin Supreme Court offered Trump his closest brush with success. Three of its seven justices supported Trump’s demand to cancel votes in Dane and Milwaukee Counties. In the end, however, Trump’s attempt failed to switch the Wisconsin vote in the Electoral College.

In his Wisconsin lawsuit Trump tried to invalidate the ballots of more than 220,000 voters in Dane and Milwaukee counties. Since those ballots hadn’t been separated and couldn’t be identified, this would have been done through a so-called “drawdown,” in which ballots from the two counties would be selected by random for discard. This loss of ballots from Wisconsin’s most heavily Democratic counties would have switched the Wisconsin presidential electors from Biden to Trump.

One can easily spot Trump’s strategy in his demand that EL-122, the form used to request an early in-person ballot, be declared invalid. According to the majority opinion, this would have resulted in striking 170,140 votes in the two counties. The circuit court had concluded that 651,422 voters throughout the state used this form in the 2020 presidential election.

The majority of the Wisconsin Supreme Court justices–Brian Hagedorn, Ann Walsh Bradley, Rebecca Dallet, and Jill Karofsky—ruled against Trump. Justice Hagedorn wrote the majority opinion.

The majority decision relied heavily on the concept of “laches,” that Trump had unreasonably delayed in making his claim. Most of the challenged practices had been introduced years before and never challenged—until Trump spotted them as a door to driving down the Biden vote. Thus, the judgment of the circuit court was affirmed.

The dissents, from Justices Patience Roggensack, Annette Ziegler and Rebecca Grassl Bradley, are both longer and far angrier than the majority decision. Who are they angry at? Start with their colleagues, the members of the majority. Here is Rebecca Bradley in a typical rant:

Once again, the majority of the Wisconsin Supreme Court wields the discretionary doctrine of laches as a mechanism to avoid answering questions of law the people of Wisconsin elected us to decide.

They are also angry at the Wisconsin Elections Commission. As in the next quote, from Roggensack, their anger at their colleagues reflects their belief that the majority is not doing its part to bring the WEC to heel:

The canvassing boards deferred to the WEC’s guidance about defective signatures and it appears that the circuit court did so as well when interpreting Wis. Stat. § 6.87.

Roggensack reported that Circuit Court Judge Stephen Simanek noted the practice of adding the requisite witness address information by the clerk has been in effect since before the 2016 election and is not prohibited by law. It was therefore a reasonable interpretation, in Simanek’s view, to add that information to make sure the will of the voters is brought to fruition.

Roggensack goes on to attack the WEC and, by inference, the judge:

It is unfortunate that WEC has such sway, especially when its “guidance” is contrary to the plain meaning of two statutes.

Here is Rebecca Bradley, managing to attack both of her nemeses in the same sentence:

The consequence of the majority operating by whim rather than law is to leave the interpretation of multiple election statutes in flux–or worse yet, in the hands of the unelected members of the WEC.

This theme, that the WEC should not matter because it is unelected, is recurrent. Here is an example from Ziegler:

Indeed, we are presented with a rare opportunity to meaningfully engage in, among other things, a known conflict between guidance, given by an unelected committee, and what the law requires.

RG Bradley:

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.

Ziegler calls laches “a self-prescribed, previously unknown standard it calls laches.” Roggensack claims that:

… 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.

Disagreeing with the majority’s statement, that the “time to challenge election policies such as these is not after all ballots in the election have been cast and the votes tallied,” Roggensack argues that:

With this proper framing of the issue, it is clear that the petitioners did not unreasonably delay in challenging the ballots. To somehow require that challenges must be made and legal relief given before an election, before the ballots are cast and before a recount is absurd. No recount would ever amount to relief if that is the lodestar.

There are a number of reasons to oppose allowing candidates to wait until ballots are cast before challenging the way an election was run. Most important is unfairness to voters.

Consider the City of Madison’s “Democracy in the Park” event in which voters could bring in their absentee ballots to a park, where they could be witnessed and collected. The three dissenters agree with Trump that those ballots should not be counted. If there had been a warning that the ballots would not be counted, I am sure every attendee would have used some alternative means of voting. The trouble with Ziegler’s proposal is that it leaves voters vulnerable to a sneak attack, in which they discover only after the fact that their ballot was invalidated.

Second, such a policy would encourage future bad losers to develop a post-election strategy. The strategy would go something like this: identify elements of the election that have not been fully vetted by the courts. Preferably it should be something that your opponent’s supporters used more heavily than yours did. Ask to cancel the votes of those who took advantage of those elements. Even better, limit that request to counties where your opponent had strong support.

Time and again, the three dissenting justices complain about the WEC and the local election authorities for looking to WEC for advice. They should recognize that courts don’t offer advisory opinions. They only respond when there is a controversy. The justices need to have the maturity to recognize that fact.

Voters should be confident that if they follow the rules, their vote will be counted—not suddenly gone because the Wisconsin Supreme Court doesn’t like a “Democracy in the Park” event or the poll worker filling out an address. The use of laches, to assure that any challenges to election rules are asserted and resolved well in advance of when voters must make their choices, seems like a useful way to avert this danger.

Finally, regarding the dissenting justices repeated use of “unelected” when referring to the WEC. In the case last spring in which the Court gutted Governor Tony Evers attempt to control COVID-19, the same term was often used to describe Secretary of Health Andrea Palm. This use strikes me as an attempt to diminish people and their expertise and usurp the role of the executive branch.

If it is their opinion that only elected officials may act, one must ask whether it is really their goal to reduce the government to only the elected officials of two competing branches—legislative and judicial—over which the judiciary always has the ultimate say.