Dec. 15, 2020 – In a decision addressing President Donald Trump’s bid to overturn election results by invalidating more than 200,000 votes in Wisconsin, the Wisconsin Supreme Court has ruled (4-3) that the Trump campaign is not entitled to that relief.
The decision in Trump v. Biden, 2020 WI 91 (Dec. 14, 2020), coupled with another decision released the same day in a different case, paved the way for Wisconsin’s 10 Democratic electors to certify Wisconsin’s electoral votes for President-elect Joe Biden.
“We conclude that the Campaign is not entitled to the relief it seeks,” wrote Justice Brian Hagedorn, joined by Justices Ann Walsh Bradley, Justice Rebecca Dallet, and Justice Jill Karofsky. The case drew five separate writings, including three dissents from Chief Justice Roggensack, Justice Annette Ziegler, and Justice Rebecca Bradley.
The majority rejected the petitioners’ four-pronged challenge as either meritless on its face or barred by the doctrine of laches – which bars claims on equitable grounds – noting the Trump Campaign's “delay in raising these issues was unreasonable in the extreme, and the resulting prejudice to the election officials, other candidates, voters of the affected counties, and to voters statewide, is obvious and immense.”
Chief Justice Roggensack said “a significant portion of the public does not believe that the November 3, 2020, presidential election was fairly conducted” and “four members of this court throw the cloak of laches over numerous problems that will be repeated again and again, until this court has the courage to correct them.”
The Trump Campaign challenged four categories of ballots from Dane and Milwaukee counties, including all ballots cast by voters who voted absentee and claimed they were “indefinitely confined,” a provision that exempts the voter from a photo ID requirement.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
The campaign also argued that Dane and Milwaukee counties allowed people to vote by absentee ballot without a formal written request from the voter, improperly added witness information on absentee ballot certifications, and the City of Madison allowed absentee ballots to be collected at 200 illegal ballot locations in Madison.
The majority noted that Biden won the Wisconsin vote by more than 20,000 votes through the election and a subsequent recount. A circuit court affirmed the result, and the supreme court granted a petition to hear the case, bypassing the appeals court.
On the issue of voters claiming indefinitely confined status, the campaign said statements from city clerks erroneously suggested that people could claim that status because of the COVID-19 pandemic, even if they were not actually sick.
Wisconsin law, Wis. Stat. section 6.86(2)(a), requires voters to show photo identification when requesting an absentee ballot. However, a voter is not required to show photo identification if the voter indicates he or she is “indefinitely confined because of age, physical illness or infirmity or is disabled for an indefinite period.”
The Trump Campaign wanted all ballots claiming indefinitely confined status in Dane and Milwaukee counties to be invalidated, but the majority rejected this “blanket invalidation,” which would have invalidated 28,000 votes.
“The Campaign’s request to strike indefinitely confined voters in Dane and Milwaukee Counties as a class without regard to whether any individual voter was in fact indefinitely confined has no basis in reason or law; it is wholly without merit,” wrote Justice Hagedorn, who was elected to the supreme court in 2019.
Challenges to the other three categories of ballots “fail under the longstanding and well-settled doctrine of laches,” Justice Hagedorn noted. Laches is an equitable remedy that bars claims that prejudice a party because they were not raised sooner.
“Here, the Campaign unreasonably delayed with respect to all three categories of challenged ballots,” Justice Hagedorn wrote.
Laches Bars Other Challenges
The Trump Campaign argued that voters were allowed to cast absentee ballots without making an official “written application.”
But the majority noted that both counties disseminated an absentee ballot application form created and approved by the Wisconsin Election Commission (WEC) in 2010.
“Waiting until after an election to challenge the sufficiency of a form application in use statewide for at least a decade is plainly unreasonable,” Hagedorn wrote.
The Trump campaign also challenged the category of absentee ballots that allegedly contained missing witness information.
But the majority also rejected that claim, noting “the process of handling missing witness information is not new; election officials followed guidance that WEC created, approved, and disseminated to counties in October 2016.”
“It has been relied on in 11 statewide elections since, including in the 2016 presidential election when President Trump was victorious in Wisconsin,” Justice Hagedorn wrote for the majority. “The Campaign offers no reason for waiting years to challenge this approach, much less after this election. None exists.”
Finally, the majority shot down a challenge to absentee ballots collected at 200 locations in Madison on two days in late September and early October. Sworn city election inspectors collected and inspected ballots and served as witnesses if needed.
The events drew more than 17,000 absentee ballots and were widely publicized, but the Trump Campaign waited until after the election to raise a legal challenge, Hagedorn noted.
“The Campaign waited until after the election – after municipal officials, the other candidates, and thousands of voters relied on the representations of their election officials that these events complied with the law. The Campaign offers no justification for this delay; it is patently unreasonable,” Hagedorn wrote.
Hagedorn noted that the unreasonable delay in filing challenges to procedures was prejudicial to the Biden Campaign, which was not aware of the claims before they were filed.
“In short, if the relief the Campaign sought was granted, it would invalidate nearly a quarter of a million ballots cast in reliance on interpretations of Wisconsin's election laws that were well-known before election day. It would apply new interpretive guidelines retroactively to only two counties. Prejudice to the respondents is abundantly clear.”
Chief Justice’s Dissent
Chief Justice Roggensack’s 19-page dissent, joined by Justices Ziegler and R. Bradley, would have reached the merits of the case without regard to the doctrine of laches.
The chief justice concluded that, with respect to witness requirements, “errors in the certification of ballots require discarding those ballots.”
She said Wisconsin law authorizes election officials to return ballots to electors to fix any defects, whenever time permits, and the applicable statute, enacted in 2015, clearly says absentee ballot envelopes with a missing address “may not be counted.”
Chief Justice Roggensack said any guidance from the Wisconsin Election Commission to the contrary is not law. “The WEC ignores that the legislature provided only one act an election official may take in regard to a defective witness address: mail the defective ballot back to the elector to correct the error,” the chief justice wrote.
Written applications are also required for a voter to obtain an absentee ballot, the chief justice noted. Dane and Milwaukee County election officials disseminated WEC-approved absentee ballot applications to all registered voters in those counties.
But the chief justice said Wisconsin law required a separate written request from the voter, besides the application, to legally receive and submit an absentee ballot.
The court did not have enough information to determine whether voters lawfully asserted the indefinitely confined status, the chief justice concluded.
But she said the more than 17,000 absentee ballots collected by poll workers at 200 locations in Madison, a drive dubbed “Democracy in the Park,” may have been invalid because they were not mailed or delivered in person to the municipal clerk.
“Gatherings in 200 city parks did not meet the statutory requirements for lawful absentee voting,” the chief justice wrote. “They also lack the safety and solemnity that are attached to personally delivering absentee ballots to the municipal clerk.”
Justice R. Bradley wrote a separate dissent, joined by the other dissenters, noting courts have discretion to apply the doctrine of laches and should not have done so here.
“Although nothing in the law compels its application, this majority routinely hides behind laches in election law cases no matter when a party asserts its claims,” Justice R. Bradley wrote. “In doing so, the majority commits grave error by according WEC guidance the force of law.”
She said President Trump had no reason to file a lawsuit before the election because he was not an aggrieved party until the Wisconsin ballot counts showed he lost.
“Having neglected to identify any principles guiding its decisions, the majority leaves Wisconsin's voters and candidates guessing as to when, exactly, they should file their cases in order for the majority to deem them worthy of the court's consideration on the merits,” R. Bradley wrote.
Justice Ziegler wrote a separate dissent, joined by the other dissenting justices, also concluding the doctrine of laches sidesteps important issues unique to Wisconsin.
“The people of Wisconsin deserve an answer – if not for this election, then at least to protect the integrity of elections in the future,” she wrote. “Instead of providing clarity, the majority opinion is, once again, dismissive of the pressing legal issues presented.”
Responding to dissenters, Justice Hagedorn wrote a concurring opinion, joined by Justice A.W. Bradley, to address “the underlying election administration issue” on the merits, concluding the claims still fail.
“Even on the merits, however, the Campaign is either incorrect on the law, or does not provide sufficient proof to identify particular ballots that were improperly cast,” he wrote.
“At the end of the day, nothing in this case casts any legitimate doubt that the people of Wisconsin lawfully chose Vice President Biden and Senator Harris to be the next leaders of our great country.”
Justice Dallet and Justice Karofsky wrote a short concurring opinion to note President Trump’s claims of fraud.
“The President failed to point to even one vote cast in this election by an ineligible voter; yet he asks this court to disenfranchise over 220,000 voters,” they wrote. “The circuit court, whose decision we affirm, found no evidence of any fraud.”