With Donald Trump It’s Never Over

Following his defeat on November 3rd, President Donald Trump and his allies filed a flurry of lawsuits in Wisconsin and the other states that flipped from red to blue. Two of the Wisconsin suits were brought in federal courts and six in state courts. This column looks at the two suits brought in federal district courts. A future column will explore the cases brought in state courts.

The second of the two federal lawsuits is the most worrisome suggesting that Trump’s lawyers may be preparing the ground for him to steal the 2024 election. The first case is by far the most colorful, full of talk of conspiracies involving Venezuelan dictators.

Feehan v. Wisconsin Elections Commission

This case was filed on December 1, 2020 with the United States District Court, Eastern District of Wisconsin, Milwaukee Division. At the start there were two plaintiffs, but the second plaintiff was subsequently dropped when he protested that he had not agreed to join the suit. His decision was perhaps unsurprising, considering that Sidney Powell was the lead attorney and Lin Wood was one of the associate attorneys.

Powell and Wood are known for spinning involved conspiracy theories and they do not disappoint here. The complaint starts by claiming a “massive election fraud.” The supposed fraud involves numerous players starting with Dominion Voting Systems, America’s second largest supplier of election hardware and software. The latter, it asserts, was derived from software designed by Smartmatic Corporation. The complaint goes on to claim that “Smartmatic and Dominion were founded by foreign oligarchs and dictators to ensure computerized ballot-stuffing and vote manipulation to whatever level was needed to make certain Venezuelan dictator Hugo Chavez never lost another election.” According to the complaint, this tale was confirmed by an anonymous “whistleblower.” (Both companies are suing Powell and others for making these claims.)

Throughout the complaint, Powell’s claims obsess about the “Dominion computer fraud” conspiracy. Yet Dominion is a relatively small player in the Wisconsin market for election equipment. Only three of Wisconsin’s 20 largest cities—Racine, Oshkosh, and Fond du Lac—use Dominion, according to a survey from the U.S. Election Assistance Commission. Thus, even if the theory were credible, it would not explain the election results from Milwaukee and Madison, the two cities that helped drive Joe Biden’s victory and drew the most ire from Trump.

Although Powell’s Dominion fixation is reflected in over 120 mentions of the company in her original complaint, she does manage to squeeze in other issues. For example, she includes a report that claims there are “statistical impossibilities” that prove Biden could not have received the vote reported by Dominion machines. Like the whistleblower, the author of this report chooses to remain anonymous.

Powell points to a number of other patterns which she insists show fraud while ignoring other explanations. One is the jump in the Biden vote share in the early hours of November 3rd; This was expected as Milwaukee and other cities completed their count of absentee ballots. Likewise, a mismatch between ballots sent out and those returned is said to show fraud; more likely it reflects voters who decided not to vote or to vote in person.

Next, Powell echoes complaints in other Trump suits, such as clerks correcting the witness address and the indefinitely confined issue.

After throwing the kitchen sink at the judge, Powell requests emergency relief consisting of twelve points. The oddest is this:

11. Immediate production of 48 hours of security camera recording of all rooms used in the voting process at the TCF Center …

The TCF Center is in Detroit. Her most ambitious request is this:

3. An order requiring Governor Evers to transmit certified election results that state that President Donald Trump is the winner of the election.

On December 9, the US federal judge dismissed Powell’s case, commenting:

Federal judges do not appoint the president in this country. One wonders why the plaintiffs came to federal court and asked a federal judge to do so. After a week of sometimes odd and often harried litigation, the court is no closer to answering the “why.” But this federal court has no authority or jurisdiction to grant the relief the remaining plaintiff seeks. The court will dismiss the case.

Trump v. Wisconsin Elections Commission

This federal suit was filed on November 5 in the same federal court. Trump’s main issues are claims that the election commission violated Wisconsin law with regard to voters’ claims of being indefinitely confined, the use of drop boxes, and election clerks’ ability to add missing witness address information.

It was heard by Federal Circuit Court Judge Brett Ludwig. Judge Ludwig dismissed the suit “with prejudice” in a December 12 order. Commenting that Trump “has not shown” there was “a significant departure from the Wisconsin Legislature’s chosen election scheme,” the judge commented:

This is an extraordinary case. A sitting president who did not prevail in his bid for reelection has asked for federal court help in setting aside the popular vote based on disputed issues of election administration, issues he plainly could have raised before the vote occurred. This Court has allowed plaintiff the chance to make his case and he has lost on the merits. In his reply brief, plaintiff “asks that the Rule of Law be followed.” … It has been.

Trump’s lawyers appealed Judge Ludwig’s decision to the 7th Circuit Court of Appeals and lost again on December 24. Judge Michael Scudder, writing for the three-judge panel, observed that “all we need to say is that … Wisconsin lawfully appointed its electors in the manner directed by its Legislature.”

Notably, both the district judge who ruled against Trump and the author of the appeals court affirmation were nominated by President Trump. In other words, half the judges ruling against Trump were appointed by him, despite Trump’s expectation that his appointees would be loyal to him. In other states, Trump has also lost before Trump-appointed judges. Perhaps this is a coincidence. Or perhaps Trump-appointed judges are viewing this as an opportunity to show that he does not pull their strings.

In turn, Trump’s lawyers appealed this decision to the U.S. Supreme Court. On January 11th, the court denied the motion to expedite consideration.

Since Joe Biden has since been sworn in as president, this would seem to end the matter. Apparently not.

On February 9th, Trump’s lawyers filed a Supplemental Brief. It pointed out that “there is a reasonable expectation he (Trump) may in the future be subject to the same action. There is no legal impediment to him running for re-election.” A footnote referenced media articles with titles like “Inauguration Day isn’t the end of the Trump era. It’s just the beginning” and “It’s still Trump’s party.”

The brief then goes on to assert that the district and appeals courts were wrong when they ruled Article II is “satisfied merely by conducting the presidential election by popular vote, even if the state legislature’s directives concerning how the election was to be conducted were not followed.” In other words, the Supreme Court is being asked to endorse future Trump efforts to switch the presidential election from the voters to Republican legislators when the voters reject him.

In both cases, it is reassuring that the judges had a commitment to democracy. It is much less reassuring that the plaintiffs and their attorneys did not.