By Gretchen Schuldt
Timing is everything.
The Trump campaign's decision to wait until after the Nov. 3 election to complain about Wisconsin election procedures that had been in effect for years played a big role in dooming its lawsuit in the State Supreme Court.
The court, in a 4-3 decision, upheld Joe Biden's win over Donald Trump in the Wisconsin's presidential race.
Team Trump cited four grounds for challenging ballots in Dane and Milwaukee counties, and three of them were struck down under the doctrine of laches, which means there was an undue delay in asserting a legal right. In other words, "you snooze, you lose." (We discussed Trump's fourth issue, that the ballots of people declaring themselves "indefinitely confined" should be tossed, here.)
Justice Brian Hagedorn, writing for the majority, made it clear:
The 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. Laches is more than appropriate here; the Campaign is not entitled to the relief it seeks....
The time to challenge election policies such as these is not after all ballots have been cast and the votes tallied. Election officials in Dane and Milwaukee Counties reasonably relied on the advice of Wisconsin's statewide elections agency and acted upon it. Voters reasonably conformed their conduct to the voting policies communicated by their election officials. Rather than raise its challenges in the weeks, months, or even years prior, the Campaign waited until after the votes were cast. Such delay in light of these specific challenges is unreasonable.
Hagedorn obviously recognized the importance of the timeliness issue – he cited 20 relevant cases. His opinion was joined by Justices Ann Walsh Bradley, Rebecca Dallet, and Jill Karofsky.
The three allegations and edited responses from the court's decision are below.
1) All Dane and Milwaukee County in-person absentee ballots votes were cast illegally without an application because, it said, the application form did not meet statutory requirements.
But both counties did use an application form created, approved, and disseminated by the chief Wisconsin elections agency. This form, now known as EL-122, is entitled "Official No. Absentee Ballot Application/Certification." It was created in 2010 in an effort to streamline paperwork following the 2008 election, and has been available and in use ever since....
The Campaign argues this "application" is not an application, or that municipal clerks do not give this form to voters before distributing the ballot, in contravention of the statutes. Regardless of the practice used, the Campaign would like to apply its challenge to the sufficiency of EL-122 to strike 170,140 votes in just two counties – despite the form's use in municipalities throughout the state. Waiting until after an election to challenge the sufficiency of a form application in use statewide for at least a decade is plainly unreasonable.
2) All Dane County / Milwaukee County absentee ballots with witness address information added by the municipal clerks should be tossed.
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. The Campaign nonetheless now seeks to strike ballots counted in accordance with that guidance in Milwaukee and Dane Counties, but not those counted in other counties that followed the same guidance. The Campaign offers no reason for waiting years to challenge this approach, much less after this election. None exists.
3) Ballots cast at Dane County's "Democracy in the Park" events were illegitimate.
The Campaign characterizes these events as illegal early in-person absentee voting. When the events were announced, an attorney for the Wisconsin Legislature sent a warning letter to the City of Madison suggesting the events were illegal. The City of Madison responded that the events were legally compliant, offering reasons why. Although these events and the legislature's The Campaign characterizes these events as illegal early in-person absentee voting. When the events were announced, an attorney for the Wisconsin Legislature sent a warning letter to the City of Madison suggesting the events were illegal. The City of Madison responded that the events were legally compliant, offering reasons why. Although these events and the legislature's concerns were widely publicized, the Campaign never challenged these events, nor did any other tribunal determine they were unlawful.
The Campaign now asks us to determine that all 17,271 absentee ballots collected during the "Democracy in the Park" events were illegally cast. Once again, when the events were announced, the Campaign could have challenged its legality. It did not. Instead, 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.
His dissenting colleagues took aim at his reasoning. Chief Justice Patience Roggensack said the majority justices lacked courage; Justice Rebecca Grassl Bradley said the majority was uninterested in protecting the integrity of the election; Justice Annette Ziegler said expecting challenges before an election was "absurd."
Roggensack (joined by Annette Ziegler and Rebecca Grassl Bradley):
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 electorate expects more of us, and we are capable of providing it.
Ziegler, joined by Roggensack and Grassl Bradley
Instead of undertaking the duty to decide novel legal issues presented, this court shirks its institutional responsibility to the public and instead falls back on a self-prescribed, previously unknown standard it calls laches.
Stated differently, the majority claims the petitioners were too late, should have acted earlier and therefore, the court is neutered from being able to declare what the law is. The majority basically reiterates respondents' soundbites. In so doing, the majority seems to create a new bright-line rule that the candidates and voters are without recourse and without any notice should the court decide to later conjure up an artificial deadline concluding that it prefers that something would have been done earlier. That has never been the law, and it should not be today. It is a game of "gotcha."...
It is a specific question: Were the ballots cast according to the law as stated in the statutes and if not, what, if any, remedy, exists?
With this proper framing of the issue, it is clear that the petitioners did not unreasonably delay in challenging the ballots. To somehow require that challenges must be made and legal relief given before an election, before the ballots are cast and before a recount is absurd. No recount would ever amount to relief if that is the lodestar.
Bradley, joined by Roggensack and Ziegler
Once again, the majority of the Wisconsin Supreme Court wields the discretionary doctrine of laches as a mechanism to avoid answering questions of law the people of Wisconsin elected us to decide....
The majority misconstrues Wisconsin law in asserting that "[t]hese issues could have been brought weeks, months, or even years earlier."
Section 9.01(11) of the Wisconsin Statutes provides that "[t]his section constitutes the exclusive judicial remedy for testing the right to hold an elective office as the result of an alleged irregularity, defect or mistake committed during the voting or canvassing process." Only a "candidate voted for at any election who is an aggrieved party" may bring an action under Chapter 9. Wis. Stat. § 9.01(1)(a). Surely the majority understands the absurdity of suggesting that the President should have filed a lawsuit in 2016 or anytime thereafter. Why would he? He was not "an aggrieved party" – he won. Obviously, the President could not have challenged any "irregularity, defect or mistake committed during the voting or canvassing process" related to the November 3, 2020 election until that election occurred....
While the United States Supreme Court has recognized that "a state indisputably has a compelling interest in preserving the integrity of its election process[,]"... he majority of this court repeatedly demonstrates a lack of any interest in doing so, offering purely discretionary excuses like laches, or no reasoning at all.
Note: Republicans mounted a successful pre-election court challenge to Wisconsin's efforts to extend the state's deadline for receiving absentee ballots to six days after the election. There is no requirement to wait until after the election to challenge a balloting process.
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