A split state Supreme Court today affirmed a reserve Racine County judge’s ruling that rejected President Trump’s challenge of more than 221,000 ballots in heavily Dem Dane and Milwaukee counties.
Justice Brian Hagedorn, writing for the 4-3 majority, wrote Trump isn’t entitled to the relief that he seeks and the challenge to indefinitely confined voters’ ballots was “meritless on its face.”
Trump also challenged early, in-person votes, absentee ballots where clerks added missing information from the witnesses who signed the ballots and absentee ballots collected by poll workers at Madison parks at events a month before the election.
Hagedorn wrote all three failed under the doctrine of laches, meaning Trump waited too long to challenge those ballots. He was joined in his decision by liberal justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky.
“Our laws allow the challenge flag to be thrown regarding various aspects of election administration,” Hagedorn wrote. “The challenges raised by the Campaign in this case, however, come long after the last play or even the last game; the Campaign is challenging the
rulebook adopted before the season began.”
The decision came down just an hour before Wisconsin’s electors were to meet in the Capitol and cast their votes for Dem Joe Biden, who won the state by more than 20,000 votes.
The suit challenged ballots in the two counties on four grounds:
*170,140 ballots that were cast early, in-person. State law requires a written request for an absentee ballot. Both counties, like others in Wisconsin, have the envelope in which early, in-person votes are placed double as the written request. But the Trump campaign argued a separate request was needed under state law.
*5,517 ballots where clerks filled in missing information on the absentee ballot envelope. The suit alleged the guidance from the Wisconsin Election Commission that clerks can fill in things like the ZIP code or the state of residence for a witness doesn’t follow the law and those ballots should be disqualified.
*28,395 ballots cast by those who claimed indefinitely confined status after March 25, when Dane and Milwaukee county clerks suggested on social media that voters could check that status in light of Gov. Tony Evers’ stay-at-home order during the initial stages of the COVID-19 pandemic. The indefinitely confined don’t have to provide a copy of their photo ID to vote absentee, and the Trump campaign alleged those votes were cast inappropriately.
Guidance published in March by the Elections Commission indicated local clerks could contact a voter if they did not believe that voter understood the restrictions on the status when they claimed it. But according to that guidance, “they should do so using appropriate discretion as voters are still entitled to privacy concerning their medical and disability status.”
*17,271 ballots collected by poll workers for the Madison Clerk’s office at so-called Democracy in the Park events Sept. 26 and Oct. 3. The city stationed poll workers at city parks to collect ballots to give voters an avenue to return them without putting them in the mail. The suit alleged the sites weren’t legally established as absentee ballot collection points.
Hagedorn wrote a concurring opinion to address the merits of the three challenges that were rejected for being filed too late. He wrote using envelopes for early, in-person voting that double as written requests for an absentee ballot meets state law, and he saw nothing in the statutes to suggest Madison’s Democracy in the Park illegally collected absentee ballots.
He added state law is silent on what makes a witness address sufficient on an absentee ballot, and the lawsuit didn’t provide clear information on what clerks added to the envelopes. Still, so long as a witness included part of an address — such as the street and municipality, but no state or zip code — it was sufficient to meet the law’s requirement.
The other three conservative justices each wrote dissents with Chief Justice Pat Roggensack slamming her four colleagues in the majority because the “court cannot be bothered with addressing what the statutes require to assure that absentee ballots are lawfully cast.”
Roggensack wrote Trump’s campaign didn’t provide enough information to challenge indefinitely confined voters and wrote state law doesn’t require a separate request for an absentee ballot when someone votes early in-person.
But she believes the Wisconsin Elections Commission gave incorrect advice to clerks that they could fill in missing information on absentee ballots. She added the only remedy allowed under state law is to mail those ballots back to voters to have them fill in the missing information.
She also believed Madison’s Democracy in the Park was improper and separately raised issues about the use of drop boxes to collect absentee ballots, even though they weren’t challenged in this lawsuit.
Roggensack wrote drop boxes “are nothing more than another creation of WEC to get around the requirements of” state law that absentee ballots must be mailed or delivered in person to the municipal clerk. She also added there were accountability issues with their use.
“The majority does not bother addressing what the boards of canvassers did or should have done, and instead, 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,” Roggensack wrote. “The electorate expects more of us, and we are capable of providing it.”
Read the ruling here.
