High Court Minority Embarrasses Itself

Following his defeat in last November’s presidential election, Donald Trump and his allies sued to try to reverse the vote count in Wisconsin and the four other states that Trump won in 2016 but lost in 2020. In addition to suing in federal courts, Trump and his allies also sued in state courts, including those in Wisconsin.

The suits from Trump and his allies fall into two groups: the first argues that Biden won because of widespread fraud; the second that ballots for Biden should be thrown out because of technical violations in how the election was managed.

Langenhorst v. Pecore is an example of a case built around fraud accusations. The driving force behind this lawsuit was an organization called True the Vote, a Houston group which describes itself as being “on the front lines of election fraud prevention.”

In September 2020, the Washington Times reported that:

True the Vote is launching a six-figure ad campaign warning that House Speaker Nancy Pelosi could emerge as commander-in-chief next year if citizens don’t vote in-person in November …

Following Trump’s defeat in the election, True the Vote sued in the United States District Court for the Eastern District of Wisconsin, Green Bay Division. It appears this was a case of judge shopping aimed at picking a judge expected to be sympathetic. Only one judge, generally considered conservative, is assigned to the Green Bay Division. The three plaintiffs live in northeastern Wisconsin and Laure Pecore is the Clerk of Menominee County.

Claiming that there was widespread fraud in Milwaukee, Dane and Menominee counties, the complaint argued that the proper remedy here is to exclude the results from (these) jurisdictions.“ Not coincidentally, those three counties are the most Democratic in Wisconsin.

A hearing was scheduled for November 16. That morning, the plaintiffs dismissed their case. Similar cases in Georgia, Michigan, and Pennsylvania were also dismissed.

What happened? A Washington Post article helps to explain. Apparently, True the Vote discovered that election fraud was far rarer than it expected. They had filed suit without evidence to back up their accusations.

The Post noted that financier Fred Eshelman gave $2.5 million for a voter fraud investigation. Disappointed, he was now suing True the Vote to get his money back.

Another pro-Trump lawsuit was Mueller v. WEC. In contrast to Langenhorst, it falls in the “didn’t follow the rules” argument, although one would not know that from Karen Mueller’s overheated rhetoric: “The breadth of this wrongdoing is unprecedented in American history and is breath-taking in its implications.”

It turns out that the breath-taking and unprecedented wrongdoing is the use of drop boxes for the return of absentee ballots.

The plaintiff petitioned the Wisconsin Supreme Court to accept this case as an “original action,” in which a case goes directly to the Supreme Court rather than to a district court. On December 3, 2020, the Wisconsin Supreme Court denied Mueller’s petition.

Two cases, Trump v. Biden and Trump v. Evers are so thoroughly intertwined that I will discuss them together. They were both brought by Donald Trump, Mike Pence, and the Trump campaign, using the same attorneys, James Troupis and George Burnett.

Trump’s attorneys first requested a recount of ballots from Dane and Milwaukee Counties. They then claimed that Wisconsin’s election managers made four wrong decisions: allowing ineligible voters to claim indefinitely confined status, using a form to request an in-person absentee ballot that the plaintiffs claim did not qualify as a “written application,” allowing election officials to fill in missing witness address information, and approving Madison’s “Democracy in the Park” events in which absentee ballots were collected.

His attorneys claimed that the appropriate remedy for these purported errors was to throw out all Milwaukee and Dane county ballots from voters who claimed after March that they were indefinitely confined, all in-person absentee ballots, all absentee ballot with added witness address information, and all ballots collected at the Madison “Democracy in the Park” events.

Notably, this remedy would have left absentee ballots undisturbed in the rest of Wisconsin. Its intended effect would have been to hand Wisconsin over to Donald Trump.

When the two counties’ canvassers rejected the proposed remedy, Trump’s attorneys petitioned the Wisconsin Supreme Court to accept their case as an original action. By a vote of four to three the court denied the petition. Three justices—Patience Roggensack, Annette Ziegler and Rebecca Bradley–dissented from this decision.

At this point, Trump’s attorneys requested the Chief Justice to appoint a district judge to hear the case. She appointed Reserve Judge Stephen Simanek of Racine County. Following a hearing, Judge Simanek affirmed the counties’ decision refusing to strike ballots on these grounds.

By a vote of 4 to 3, the same alignment that rejected the request for original action, the Wisconsin Supreme Court affirmed Judge Simanek’s ruling. Justice Brian Hagedorn wrote the Court’s decision, joined by Justices Ann Walsh Bradley, Rebecca F. Dallet and Jill Karofsky. Justices Roggensack, Ziegler, and Rebecca Bradley dissented.

Several of the dissenter’s comments seem problematic. They seem outraged that the Wisconsin Election Commission might interpret Wisconsin statutes differently than they do. Rather than acknowledge that the statutes leave issues subject to interpretation, their dissent is full of phrases like “erroneous advice,” “erred again” and “giving advice contrary to statute.”

While the Supreme Court may be the “law declaring court,” as they say, the Wisconsin Elections Commission is an advice-giving body. Reflecting the U.S. Constitution’s description of the judiciary as dealing in “cases and controversies,” courts don’t normally offer advice. They await a controversy. Until someone challenges an election practice, courts are not involved.

Disturbingly the minority rejects the proposition that challenges to election rules should be made before the election is run, not afterward. In their world an election loser like Trump would have the post-election option to challenge some rule to knock out enough votes for his or her opponent to switch the outcome.

Justice Ziegler, in her dissent, defends the idea of post-election challenges to the rules under which an election was run. “To somehow require,” she writes, “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.” But a recount should not be an opportunity to rewrite the rules. As the name suggests, it is a chance to make sure the ballots were correctly counted.

It is alarming to see how close the state Supreme Court was to becoming the only court in the land accepting these arguments. However, the election challenges also brought good news; the inability of True the Vote and other believers in election fraud to find credible evidence helps confirm that the election was remarkably clean.