MADISON, Wis. – The state Supreme Court showed deep divisions Saturday as it contemplated a final push by President Donald Trump to throw out President-elect Joe Biden’s narrow win in Wisconsin.
The arguments – a rarity on a weekend – came amid a string of legal setbacks for the president. During the arguments, a federal judge in Milwaukee ruled against Trump, dealing the seventh defeat to Trump and his allies in 10 days over Wisconsin’s results.
The three liberals on the state’s high court showed extreme skepticism toward Trump’s arguments. Three conservatives showed some support for at least parts of his claims.
Unclear were the views of Justice Brian Hagedorn, who was elected last year with the support of Republicans but has sided at times with the liberals. He joined the liberals last week in turning down three other challenges to Wisconsin’s election results.
In the latest case, the justices are expected to rule before the Electoral College meets at noon Monday.
Biden won Wisconsin by about 21,000 votes out of 3.3 million cast, giving him a margin of victory of 0.6 percentage points. Trump paid $3 million for a recount in Dane and Milwaukee counties, but the recount slightly widened Biden’s win.
Trump brought a lawsuit directly to the state Supreme Court, but the justices rejected it on a 4-3 vote last week, saying he should start in lower court.
Trump then filed a new challenge and Reserve Judge Stephen Simanek on Friday ruled against Trump, saying officials had run a fair election that was free of widespread fraud and misconduct.
Hours later, Trump appealed and asked the Supreme Court to take up the case rather than have it go to the Court of Appeals. The justices agreed to take the case and scheduled Saturday’s arguments.
A quest to toss 220,000 ballots
Trump attorney Jim Troupis argued several election practices in Wisconsin – some of them long-standing – were illegal. He said voting was tainted by fraud, but the fraud was perpetrated by clerks and poll workers rather than voters.
“This whole case is about fraud,” Troupis says. “The statutes are in place because they presume if you do not follow them there is fraud.”
He faced tough questioning from the court’s liberals, who said it was unfair for him to try to eliminate more than 220,000 ballots in the state’s most populous counties while letting stand ballots that were cast in the same ways in other counties.
“This lawsuit, Mr. Troupis, smacks of racism,” Justice Jill Karofsky said.
Troupis said Trump limited his recount to Dane and Milwaukee counties because a statewide recount would cost nearly $8 million. Karofsky scoffed at that notion, alluding to the more than $170 million the president has raised since Election Day.
“This isn’t about the amount of money that this recount cost,” she said. “This is about disenfranchising voters in two counties, and only two counties, in the state of Wisconsin.”
Karofsky won a seat on the court this year. She said before the election she would never vote for Trump, saying there were so many reasons she opposed him she didn’t know where to start.
Troupis argued clerks were wrong to fill in the addresses of witnesses on absentee ballot envelopes, and Justices Rebecca Bradley and Annette Ziegler showed sympathy for those concerns.
The policy that allows clerks to fill in witness addresses was put forward four years ago at the behest of Republicans on the state Elections Commission. In some cases, clerks fill in full addresses, but in others they simply add the city or state when the witness hasn’t provided it. Bradley emphasized that state law — not guidance from the commission — is what must be followed.
Troupis also challenged “Democracy in the Park” events held before the election in Madison, where poll workers stationed themselves in more than 200 locations to collect absentee ballots. Election officials have likened the events to the absentee ballot drop boxes that cities around the state set up.
But Chief Justice Patience Roggensack and Ziegler expressed skepticism of that theory, with Roggensack saying she feared the events amounted to allowing in-person early voting before the state’s two-week early voting period began.
“My concern is that this is early voting, OK? It happened way before Oct. 20, when early voting could start,” she said. “It’s very much the same thing if you do in-person voting.”
Defending election officials, Assistant Attorney General Colin Roth disagreed. He said it wasn’t a form of early in-person voting because voters had to get absentee ballots sent to them in advance.
State law allows voters to hand-deliver absentee ballots to clerks, but Roggensack said that was supposed to happen in clerks’ offices, not “here, there and everywhere.”
In his most sweeping argument, Troupis claimed in-person early voting had been conducted illegally. He contended state law requires voters to fill out two forms instead of one and maintained that his own ballot should be thrown out because he had only. filled out one form.
Clerks have been using one form for more than a decade. Justice Rebecca Dallet noted the single form was used when Trump won Wisconsin four years ago.
“What I’m hearing you say then is really the form was fine in 2016 when it helped the president to win but now in 2020 when he has not won the state of Wisconsin there is something illegal or improper about the form,” Dallet said.
Troupis contended clerks gave voters too much latitude to decide if they were confined to their homes. Voters who identify themselves as indefinitely confined do not have to provide a photo ID to vote absentee, as others must.
About 215,000 voters have claimed that status and Republicans contend some of them don’t meet the criteria. Democrats have said the increase in people who consider themselves indefinitely confined is not surprising because of the coronavirus pandemic.
Bradley raised a number of questions about the practice, while the liberal justices said there was little evidence voters had improperly claimed to be indefinitely confined.
The justices are already considering the issue in a lawsuit brought this spring by the state Republican Party.
In his ruling Friday, Simanek noted that guidance from the state Elections Commission on how to administer the indefinite confinement law “was essentially approved by the Wisconsin Supreme Court” in an initial ruling in that case.
Legal setbacks for Trump
The case comes after a series of defeats for Trump in Wisconsin and around the country.
Last week, the state Supreme Court declined to take three lawsuits seeking to overturn the state’s results. This week, in addition to Simanek’s ruling, the U.S. Supreme Court turned away an attempt by Texas to rescind the results in Wisconsin and three other states and two federal judges in Milwaukee tossed out a pair of cases seeking to eliminate the state’s results. The latest of those was issued Saturday by U.S. District Judge Brett Ludwig, a Trump nominee.
The earlier rulings by the high court show the challenges for Trump before the justices.
A majority refused to take up his initial suit and two of the three dissenters, Roggensack and Ziegler, showed reluctance to throw out large numbers of votes, as Trump requested.
In another 4-3 ruling in a different challenge to the election results last week, Hagedorn wrote a concurring opinion expressing alarm at the prospect of tossing aside the will of the voters.
“This is a dangerous path we are being asked to tread,” he wrote. “The loss of public trust in our constitutional order resulting from the exercise of this kind of judicial power would be incalculable.”
On Saturday, Hagedorn mostly listened and occasionally asked technical questions.
Federal court goes against Trump
As the state justices debated their case, Ludwig issued his decision from the federal bench. He ruled against Trump, concluding state officials had followed Wisconsin’s laws when they conducted the Nov. 3 election.
Ludwig described the case as “extraordinary.”
“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,” he wrote.
“This court allowed the 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.”
In his federal lawsuit, Trump challenged many of the election policies he is arguing against in state court.
Ludwig found that the state Legislature had given the Wisconsin Elections Commission the ability to advise clerks on how to set up their election procedures. Siding with Trump would allow every losing candidate to run to court after each election, he wrote.
