Parsing the Trump v. Biden decision

By Gretchen Schuldt

​It was a 4-3 squeaker in the State Supreme Court this week as it upheld Joe Biden's win over Donald Trump in the Wisconsin's presidential race.

The full document is chock-full of dissents and concurrences – the entire thing is 81 pages long and long, and yes, there is a bit of the snark we have come to expect from Justice Rebecca Grassl Bradley.

We are dissecting the decision, trying to make it a bit easier for non-lawyers to follow by arranging it in some sort of logical order, grouping excerpts from the main decision, written by Justice Brian Hagedorn, with excerpts from the relevant dissents and concurrences.

We also aiming for the major points, and don't plan to replicate every word in the decision.

Our introduction to the decision is from Hagedorn, who summarized it nicely in his majority opinion which was joined by Dallet, Walsh Bradley, and Justice Jill Karofsky.

The (Trump) Campaign focuses its objections on four different categories of ballots – each applying only to voters in Dane County and Milwaukee County. First, it seeks to strike all ballots cast by voters who claimed indefinitely confined status since March 25, 2020. Second, it argues that a form used for in-person absentee voting is not a "written application" and therefore all in-person absentee ballots should be struck. Third, it maintains that municipal officials improperly added witness information on absentee ballot certifications, and that these ballots are therefore invalid. Finally, the Campaign asserts that all ballots collected at "Democracy in the Park," two City of Madison events in late September and early October, were illegally cast.

A big theme for the justices was whether Trump's complaints were filed in a timely manner, and that theme ran through much of the justices' writings.

The majority – Hagedorn, Walsh Bradley, Dallet, Karofsky

1. Indefinitely confined

This was definitely the least contentious issue the justices dealt with.

State law allows voters to declare themselves indefinitely confined if they meet legal requirements. This gives them the ability to avoid the requirement to present a photo ID to get an absentee ballot. 

The Dane and Milwaukee County clerks in March, in Facebook posts, said any potential voter could declare indefinite confinement because of the pandemic and Gov. Tony Evers' "Safer-at-Home" which was in effect at the time. Within a week, though, the Supreme Court said the Dane/Milwaukee County advice was erroneous. and the county clerks modified their postings.

Here is what Hagedorn, delivering a bench slap to Team Trump, said in the majority opinion.

The (Trump) Campaign does not challenge the ballots of individual voters. Rather, the Campaign argues that all voters claiming indefinitely confined status since the date of the erroneous Facebook advice should have their votes invalidated, whether they are actually indefinitely confined or not. Although the number of individuals claiming indefinitely confined status has increased throughout the state, the Campaign asks us to apply this blanket invalidation of indefinitely confined voters only to ballots cast in Dane and Milwaukee Counties, a total exceeding 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.

Roggensack, in a dissent joined by Grassl Bradley and Ziegler, was the only other justice to directly address the issue, and she did so only briefly. 

In the pending matter, we do not have sufficient information about the 28,395 absentee voters who claimed this status in Milwaukee and Dane counties to determine whether they lawfully asserted that they were indefinitely confined prior to receiving an absentee ballot. Therefore, I go no further in addressing this contention.                                        Next: Timeliness

The minority – Grassl Bradley, Roggensack, Ziegler