Wisconsin’s 10 presidential electors cast their votes for President-elect Joe Biden on Tuesday, hours after the state Supreme Court denied President Donald Trump’s request to overturn the election result by tossing out more than 220,000 votes in heavily Democratic Dane and Milwaukee counties
The flurry of activity caps off a tumultuous post-election saga in Wisconsin that has now concluded, save for the counting of each state’s electoral votes on Jan. 6 in Washington.
In a 4-3 ruling written by conservative-backed Justice Brian Hagedorn and the court’s three liberal-backed members, the court affirmed a circuit court’s ruling that Biden won the election, and dismissed Trump’s challenge as meritless and far too late. But with just one more vote, however, the conservative-backed members of the court who dissented may have succeeded in tossing at least some ballots that the Trump campaign challenged, potentially overturning the election result.
Biden won the state by more than 20,600 votes, but the campaign challenged more than 220,000 ballots in heavily Democratic Dane and Milwaukee counties.
“The challenges raised by the Campaign in this case … come long after the last play or even the last game; the Campaign is challenging the rulebook adopted before the season began,” Hagedorn said. “Striking these votes now — after the election, and in only two of Wisconsin’s 72 counties when the disputed practices were followed by hundreds of thousands of absentee voters statewide — would be an extraordinary step for this court to take. We will not do so.”
The court’s opinion relies for the most part on a legal doctrine mandating that aggrieved parties in a lawsuit should not delay in seeking relief from a court. The opinion states that legal doctrine is especially applicable in election cases, where the rules were longstanding and the campaign had years to challenge them.
Hagedorn said the campaign’s delay in not seeking relief until after the election was “unreasonable in the extreme,” a decision that could harm election officials, other candidate, voters in the affected counties and voters statewide.
“Unreasonable delay in the election context poses a particular danger——not just to municipalities, candidates, and voters, but to the entire administration of justice,” Hagedorn said. “The issues raised in this case, had they been pressed earlier, could have been resolved long before the election. Failure to do so affects everyone, causing needless litigation and undermining confidence in the election results. It also puts courts in a difficult spot.”
Hagedorn called the predicament the Trump campaign found itself in after the election “one of the Campaign’s own making.”
The meeting of the electors is typically a ceremonial task not given much attention, but amid this year’s litany of legal maneuvering by Trump and his allies to override the will of the voters and overturn the election result, more attention is being paid to formerly mundane U.S. election procedures.
According to Gov. Tony Evers’ spokeswoman, Wisconsin’s electors plan to meet and cast their votes even if there is not an order from the Wisconsin Supreme Court.
The impending decision from the high court is likely to be the last in what has been a litany of desperate legal maneuvers from Trump and his allies to disregard the popular vote in the states, a staple of American democracy, in order to secure another four year term as president. Federal and state courts have almost exclusively dismissed Trump’s long-shot election challenges, yet Trump, with Republican lawmakers in tow, continues to peddle false claims of election fraud and irregularities and has vowed to “fight on.”
Ahead of the meeting of electors, the high court issued a ruling in a separate lawsuit from Republicans seeking clarification on “indefinitely confined” voters.
The status applies to voters who are indefinitely unable to vote in person due to age, physical illness, infirmity or disability, and exempts them from having to provide a photo ID. The Trump campaign challenged ballots from voters in Dane and Milwaukee counties who cast their ballots under this distinction, contending many of them didn’t meet the definition of indefinitely confined.
In the spring, the Wisconsin Supreme Court ordered those clerks to stop issuing the guidance that was different from the WEC guidance, which states “indefinitely confined status is for each individual voter to make based upon their current circumstances” but notes the status is not to be used simply as a means of avoiding the voter ID requirement.
The court’s order has remained in effect ever since, including for the November election.
On Monday, the court ruled that voters may self-certify as “indefinitely confined,” however, their determination may only be based on age, physical illness or infirmity, and not the condition of another person. The ruling could provide some basis for the court’s expected ruling on Trump’s election challenge.
It follows a contentious Saturday hearing where the liberal-backed justices on the court appeared dismayed at Trump’s election challenge, which seeks to throw out about 221,000 absentee ballots in heavily Democratic Dane and Milwaukee counties, which are also among the most diverse in the state.
Liberal-backed Justice Jill Karofsky said the lawsuit “smacks of racism” and charged that “you want us to overturn this election so your king can stay in power.” Some of the conservative-backed justices on the court that control the majority, however, appeared at least somewhat open to some of Trump’s arguments.
Trump and his allies have suffered numerous defeats in court during the past week as they have attempted a litany of legal arguments to override the will of the voters and overturn the election. On Friday, the U.S. Supreme Court rejected a lawsuit from the state of Texas seeking to overturn the election results in Wisconsin and three other battleground states, and a Racine County reserve judge handed Trump a defeat in his state court challenge, which led to Saturday’s state Supreme Court hearing.
The state Supreme Court case represents an unusual plea for the courts to invalidate swaths of ballots deemed legal by multiple authorities by essentially changing the rules of the election after it has occurred. Official results in Wisconsin show Biden winning the state by more than 20,600 votes, a thin margin nearly identical to that of Trump’s victory in 2016.
Trump and his attorneys have attempted to throw out hundreds of thousands of absentee ballots in Dane and Milwaukee counties based on the argument that election officials there relied upon erroneous interpretations of state election law in determining which ballots should be counted.
The Trump campaign has focused its efforts on those two counties despite the fact many of the practices it objects to would have occurred across the state. The guidance elections officials in those two counties followed was consistent with guidance from the Wisconsin Elections Commission, the agency created by Republicans to advise local officials on matters of election administration.
The challenged ballots include in-person absentee ballots in which the voter did not submit a separate written application, absentee ballots in which the address on the envelope was incomplete or filled in by a clerk, absentee ballots cast by voters who identified themselves as “indefinitely confined,” and absentee ballots collected at Madison’s “Democracy in the Park” event.
For the most part, the guidance followed in this year’s presidential election was the same guidance adhered to in 2016, when Trump won. On Friday, a reserve judge in Milwaukee County Circuit Court sided with Biden, ruling that election officials followed the law, affirming Biden’s win.
The conservative justices expressed concern during the Saturday hearing about absentee ballots cast by voters at Madison’s “Democracy in the Park” event, contending that it could potentially constitute illegal early voting.
The event, held Sept. 26 and Oct. 3, before the in-person voting window, was an opportunity for voters who had already received their absentee ballots to safely drop off the ballots with election officials at any of Madison’s 206 city parks and get them witnessed if needed amid the COVID-19 pandemic.
An attorney for the Wisconsin Elections Commission argued the fact such voters received their ballots in the mail ahead of time was a key distinction that separates the event from early in-person voting and is therefore allowed. He also said not all voters at Democracy in the Park events got their ballots witnessed by volunteers there, and instead only dropped off their ballots.
There has long been a dispute over voters who self-identified as “indefinitely confined” when requesting absentee ballots.
Legal experts have said the court would be highly unlikely to invalidate ballots after the election if voters were following the rules told to them by officials. If the court made any determination that changed the interpretation of existing election law, which is possible, it would likely apply to only future elections so as to not disenfranchise voters.
The Wisconsin Supreme Court consists of four conservative-backed members and three liberal-backed members, although one of the conservative-backed, Justice Brian Hagedorn, has been a swing vote on the court. Last week, Hagedorn broke with his conservative-backed colleagues who wanted the high court to immediately take up the case.
Fave 5: State government reporter Mitchell Schmidt shares his top stories of 2020
Choosing my five favorite stories of 2020 seems almost paradoxical.
This year has felt like one exhausting slog of pandemic stories, state Legislature updates and, oh yeah, a presidential election thrown in for good measure. Thanks to a split government, there’s been no shortage of politically-charged stories here in Wisconsin and the partisan divide has, maybe unsurprisingly, felt as wide as ever throughout the COVID-19 pandemic.
I don’t know if “favorite” is the best way to describe them, but here are a few stories from 2020 that stood out to me:
Back in March, Gov. Tony Evers issued the state’s first public health emergency in response to the then-emerging pandemic. At the time, Wisconsin had reported eight total cases of COVID-19.
As the pandemic progressed, positive cases and deaths climbed and state lawmakers battled over the appropriate response. In May, the Wisconsin Supreme Court struck down Evers’ stay-at-home order, a decision that still resonates today with the state’s coronavirus-related measures.
One story I was particularly excited about before I officially started working for the State Journal was the 2020 Democratic National Convention in Milwaukee. However, like most things this year, the pandemic drastically altered that plan.
Lastly, in November I worked on a story about how GOP-drawn legislative maps once again disproportionately benefited Republicans in state elections. Wisconsin is headed toward another legal battle next year when the next batch of 10-year maps are drawn.
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