A split state Supreme Court today rejected President Trump’s request to directly hear his challenge to ballots cast in heavily Dem Dane and Milwaukee counties.
The court’s 4-3 ruling means Trump would first have to re-file the action in circuit court to have the case heard, and the president’s campaign filed its notices in Dane and Milwaukee counties after the justices’ decision.
Conservative Brian Hagedorn joined his three liberal colleagues in the majority. Hagedorn wrote in a concurring opinion that he understands the “impulse to immediately address the legal questions” in the petition. But state law dictates challenges to recounts be filed first in circuit court.
“Following this law is not disregarding our duty, as some of my colleagues suggest. It is following the law,” Hagedorn wrote.
Trump’s campaign filed suit Tuesday raising a series of objections to votes cast in Dane and Milwaukee counties after recounts there upheld Joe Biden’s win in Wisconsin. That includes challenges to more than 170,000 votes cast through early, in-person voting, more than 5,500 where clerks filled in missing information on the absentee ballot return envelope, more than 28,000 from those who indicated they were indefinitely confined and more than 17,000 votes Madison officials collected at sites in city parks a month out from the election.
Biden’s final margin following the recount was 20,682 votes.
Trump attorney Jim Troupis said the campaign would “immediately” file suit in Dane and Milwaukee counties.
“It was clear from their writings that the court recognizes the seriousness of these issues, and we look forward to taking the next step,” Troupis said. “We fully expect to be back in front of the Supreme Court very soon.”
Conservative Chief Justice Pat Roggensack wrote in her dissent that she would’ve granted the petition and then referred the fact finding aspects of the case to circuit court, which would then report back to the justices to decide “the important legal questions presented.”
“I also write separately to emphasize that by denying this petition, and requiring both the
factual questions and legal questions be resolved first by a circuit court, four justices of this court are ignoring that there are significant time constraints that may preclude our deciding significant legal issues that cry out for resolution by the Wisconsin Supreme Court,”
Elections Commission has been advising clerks for some time they may fill in missing information on absentee ballot envelopes. The court owes to the public to declare if that advice is correct, she added.
“However, doing so does not necessarily lead to striking absentee ballots that were cast by following incorrect WEC advice,” Roggensack wrote. “The remedy Petitioners seek may be out of reach for a number of reasons.”
Fellow conservative Annette Ziegler joined Roggensack’s dissent, while conservative Justice Rebecca Bradley also wrote a dissent. Roggensack and Ziegler joined that dissent as well.
In it, Bradley dismissed concerts from Gov. Tony Evers, the Elections Commission and local officials that accepting the case would mean “retroactively changing the rules” after the election.
“It is THE LAW that constitutes ‘the rules’ of the election and election officials are bound to follow the law, if we are to be governed by the rule of law, and not of men,” Bradley wrote.
She also slammed the majority for refusing to hear the appeal directly, saying her four colleagues are passively permitting the Elections Commission “to decree its own rules.”
“Allowing six unelected commissioners to make the law governing elections, without the consent of the governed, deals a death blow to democracy,” she wrote.
Meanwhile, the state Supreme Court also ruled 4-3 today to reject taking original action in a lawsuit a Chippewa Falls man filed seeking to throw out ballots placed in drop boxes around the state. The suit raised the possibility of having the GOP-led Legislature decide Wisconsonsin’s presidential electors.
Read the order in the Trump case.