Trump’s Lies Corrupting Wisconsin

The good news is that a report on the 2020 election from the conservative law firm Wisconsin Institute for Law and Liberty (WILL) rejects Trump’s Big Lie, that the election was stolen from him: 

“There was no evidence of widespread voter fraud. In all likelihood, more eligible voters cast ballots for Joe Biden than Donald Trump,” the report stated. “We found little direct evidence of fraud, and for the most part, an analysis of the results and voting patterns does not give rise to an inference of fraud.”

The bad news is that Trump continues to set the agenda for WILL and like-minded groups. The claims that Trump made in his attempt to take votes away from Biden — which were shot down by some 60 court cases — are now being advanced by WILL. Like Trump, the conservative law firm is going after the use of drop boxes, correcting witness signatures, Madison’s Democracy in the Park, the completion of incomplete witness addresses, privately funded grants to improve election administration and declarations by voters that they are indefinitely confined. WILL asserts: “It is almost certain that in Wisconsin’s 2020 election the number of votes that did not comply with existing legal requirements exceeded Joe Biden’s margin of victory.”

One problem with this statement is that WILL reserves to itself the determination of “existing legal requirements.” Whether or not courts will agree is unclear. Certainly, the circuit court judge bought WILL’s argument. However, an appeals court included language indicating more skepticism from its members in an order delaying the effective beginning of the ban on ballot drop boxes. If the issue makes it to the Wisconsin Supreme Court, I wouldn’t be surprised at a 4-to-3 decision. 

Coincidentally, perhaps, WILL’s interpretation of state law is congruent with the widespread belief that making absentee voting more available favors Democrats. Yet, according to a report from the Legislative Audit Bureau, the four Wisconsin counties with the highest percentage of absentee ballot use were Dane (74.4%), Milwaukee (70.6%), Waukesha (70.4%), and Ozaukee (70.2%). Both Waukesha and Ozaukee counties went for Trump in 2020.

Additional support for this conclusion comes from Steven Walter’s column in Urban Milwaukee which identified numerous examples of legislators vigorously opposing drop boxes despite the fact they were used in their districts. The truth is that drop boxes can be good for voters of either party, offering greater convenience and ballot security. 

One hurdle to bringing a lawsuit is “standing,” showing that a would-be plaintiff suffers harm from the challenged activity. In the case of the suit challenging drop boxes, the claims of harm strike me as extraordinarily weak. One claim of harm is uncertainty “as to the lawful method to cast absentee ballots in future elections.” But presumably only people wishing to use a drop box would suffer from uncertainty about whether one could use a drop box.  

Next, they claim that allowing people to use drop boxes “diminishes the value of the Plaintiff’s vote.” But any additional vote makes your own slightly less powerful. In essence, this justifies voter suppression, a particularly ugly claim.

Finally, they claim harm because they want elections “administered properly under the law” and claim harm as taxpayers. The fact that Judge Michael Bohren granted standing in response to such a weak argument suggests to me that he very much wanted the case.

WILL bases its challenge to drop boxes largely on two sections of state law. Section 6.87(4) states that the envelope containing the ballot “shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.” Since the drop box is under the control of the municipal clerk, I would think that putting the ballot into the drop box effectively delivers the ballot to the clerk.

The other section is 6.84(1) which expresses concerns about absentee ballots: 

… voting by absentee ballot must be carefully regulated to prevent the potential for fraud or abuse; to prevent overzealous solicitation of absent electors who may prefer not to participate in an election; to prevent undue influence on an absent elector to vote for or against a candidate or to cast a particular vote in a referendum; or other similar abuses.

It is hard to see how the use of drop boxes raises concerns in any of these areas. In fact, as a recent article by Bruce Murphy suggests, there are reasons to expect that using drop boxes is more secure than returning ballots by mail. This is particularly true from the standpoint of the voter. By submitting the ballot to a drop box by the posted deadline, the voter can be sure the ballot will be counted, whereas the Post Office can sometimes be unreliable.

The attempts to make voting more difficult clash with two themes underlying Wisconsin’s elections laws. One is that decisions should be driven by respect for the intentions of the voter. Consider section 7.50 on Elector intent:

If an elector marks a ballot with a cross (✘), or any other marks, as |, A, V, O, /, ✓, +, within the square to the right of a candidate’s name, or any place within the space in which the name appears, indicating an intent to vote for that candidate, it is a vote for the candidate whose name it is opposite

Starting with Trump’s attempts to win Wisconsin by challenging many of the ballots from Dane and Milwaukee counties and continued with Republican legislative proposals and WILL’s suits, the priority has switched to looking for ways to reject voters and their votes.

The second theme in state laws is extreme local control of elections, reflected in giving administration of elections to towns, villages, and cities, rather than counties or the state itself. Presumably this reflected a belief that local people were best positioned to decide whether, say, drop boxes make sense for them. Conservatives used to be known for their belief in local control. 

Today, in contrast, they have become extreme centralizers, supporting a one-size-fits-all approach to elections. In claiming to follow the law they are violating the spirit of Wisconsin election law. Unfortunately, Judge Bohren seems to have adopted the same viewpoint by insisting that his ban on drop boxes take effect immediately, even though ballots for the spring primary are already printed and being distributed. As the Court of Appeals notes in its decision overruling him, that calendar would be a recipe for confusion among voters in the rapidly approaching spring primary.