Lawsuit Eve: Wisconsin, brace yourself.

I’m writing this on Monday evening, November 30. This afternoon, the Chair of the Wisconsin Elections Commission determined the results of the presidential race, and news media around the nation declared that it’s all over in Wisconsin. They say Biden will get our 10 electoral votes, and then they move on to other news.

Only a few reporters within the state are paying close enough attention to know that it is NOT over. Even fewer–well, okay, none–have told their readers and listeners there is a significant possibility that Trump will get Wisconsin’s electoral votes.

No, I’m not dumb or partisan or under the spell of some conspiracy theory. I know that when I say one thing and the media says something else, you’re not going to believe me. So let me walk you through a few facts, which you can check yourself if you want to.

The determination today by the Commission Chair does not finally decide who gets Wisconsin’s electoral votes. In fact, the determination is the trigger for filing a lawsuit to challenge the results in court if anyone wants to. Before Ann Jacobs signed that paper, there was nothing to appeal. Now there is. And someone does want to appeal.

Trump will file a lawsuit tomorrow, seeking to disqualify enough ballots to reverse the outcome. His tweet was clear: “That case will be brought after the recount is over, on Monday or Tuesday.”

I don’t think you’ll disagree with me when I predict that the case will move quickly to Wisconsin’s Supreme Court and be decided there.

We already know the issues that will be raised in that lawsuit. As Trump tweeted: “The Wisconsin recount is not about finding mistakes in the count,” and that is true. His recount observers were not instructed to argue with the tabulation. They were instead instructed to watch for ballots that they could challenge. They found around 238,000 of them.

Trump’s lawyers said those ballots were illegally cast and told the county boards of canvass who conducted the recount not to count them. The counties boards of canvass said, “No, they’re fine,” and counted them. That is the dispute the state Supreme Court will resolve when it decides who gets Wisconsin’s electoral votes.

Trump’s Wisconsin lawsuit will not be like those filed in other states. There will be evidence: the disputed ballots. And he will not be challenging them based on vague accusations or outlandish theories. He will cite specific state laws that he will argue have been violated.

I haven’t seen the case he will file in court tomorrow, but based on the petition he filed to get the recount, we know there will be three big issues.

1) State law requires voters to request their absentee ballots in writing, but voters who went to early in-person voting sites were allowed to request their ballots orally.

The counties cannot argue that these voters submitted written applications before they received their ballots. They didn’t. Everyone knows they didn’t, and the counties don’t have any written applications for those ballots. And they cannot say the law does not require a written application; it obviously does. Wisconsin’s voter activity records enabled the Trump legal team to compile very specific evidence: not just the number of voters who voted this way, but a list of their names.

Instead, counties are likely to defend the ballots in court by saying that the absentee envelope the voters signed after they received their ballots should be considered to be the ‘application,’ a defense put forth by Meagan Wolfe, Administrator of the Wisconsin Elections Commission.

The counties are also likely to say the Republican’s complaint came too late–that if they had a problem with these voting procedures, they should not have waited until after the election; and that even if that sort of voting is illegal, throwing the ballots out is the wrong remedy because all those voters were just doing what election officials told them they could do.

I know what I think about those arguments, and you likely know what you think. But the only think that matters is what the Wisconsin Supreme Court will think.

2) State law requires clerks to return incomplete absentee ballot envelopes to the voters, but in both Dane and Milwaukee Counties, election staff made a habit of adding missing witness addresses to the absentee ballots that were missing that information. Typically, they used a different color ink or initialed their additions to show that it was they, not the voters, who completed that section of the absentee ballot. So it was easy for the Trump recount observers to pick those ballots out and challenge them.

To defend these ballots, election officials can make the same arguments as with the written application issues: that Republicans should have objected before the election, and that it’s not right to discard voters’ ballots for things the officials did.

However, election officials an additional, better defense for these ballots. In 2016, they sought and got an Attorney General’s opinion on the practice, and he said it was okay. While an AG opinion isn’t going to stand if the Supreme Court disagrees, at least it shows the clerks were not ignoring the law just because they decided to.

3) State law says that absentee voters must submit a photo ID before they can get their absentee ballots unless they are “indefinitely confined due to age, physical illness, or infirmity.” Thousands of absentee voters claimed to be indefinitely confined when they requested their November ballots–many more than in any previous election. Because neither county had a huge increase in the number of people with disabilities, it’s very likely that many of these voters simply didn’t want to have to submit a photo ID when they requested their absentee ballots.

Here’s how that happened: In March, Dane County Clerk Scott McDonell said he was getting “inundated” with calls from voters who were having trouble uploading a photo of their ID with the application. So he emailed a message to all the municipal clerks in his county and posted it on Facebook: “I am declaring all Dane County voters may indicate as needed that they are indefinitely confined due to illness. This declaration will make it easier for Dane County voters to participate in this election by mail in these difficult times.” He told Wisconsin Public Radio that during a pandemic, “We’re all supposed to assume that we are ill, and the people around us are ill.” 

Milwaukee County Clerk George Christenson followed suit.

Republicans went immediately to the state Supreme Court, where the justices unanimously agreed with them, declaring the county clerk’s advice illegal. Nevertheless, election officials in Milwaukee and Dane County continued to accept absentee ballots without photo ID from voters claiming indefinite confinement, saying they had no authority to question the voter’s claims.

As a result in November, over 68,200 voters claimed indefinite confinement in Milwaukee and Dane Counties alone. That’s 12,000 more voters than claimed indefinite confinement across the entire state in the 2016 election.

Those ballots will be the hardest to defend. Democrats won’t be able to say the Republicans should have objected before the election, because they did. Worse for the Democrats’ case, the Supreme Court sided with them–unanimously, too.

Further, there’s no argument to be made that the remedy—disqualifying the ballots—is inappropriate because the voters were innocently following official instructions. Those instructions are: “Indefinitely confined status shall not be used simply as a means to avoid the photo ID requirement without regard to whether (the voter is) indefinitely confined because of age, physical illness or infirmity, or disability.”

A different part of the Commission’s guidance might be helpful in defending the ballots: “Designation of indefinitely confined status is for each individual voter to make based upon their current circumstance. It does not require permanent or total inability to travel outside of the residence.” It will be up to the Supreme Court to decide whether this guidance means “if you say you’re confined, you are confined under the eyes of the law” or if it means “the clerks shouldn’t argue with anyone who says they are confined.” The former would help to save the ballots; the latter means only that any false claims of confinement are the voters’ fault, not the clerks’.

I can think of only one reason the Supreme Court would deny the Trump campaign’s request to disqualify those ballots, and that is the uncertainty about exactly how many there are. Surely, some of the voters truly were confined, and discarding their ballots would be unjust. But how many? And the law lacks a clear, explicit definition of “indefinite confinement;” none of them, for example, have a doctor’s note attached to their voter registration record.

But the Trump lawyers will likely be able to suggest some method of estimating what proportion of the voters claimed indefinite confinement even as they went regularly to the grocery store and dog park.

In addition to the legal arguments, think how will this case look through the political eyes of Wisconsin’s conservative justices. If they vote to uphold none of Trump’s claims, they will be excoriated by him and his followers. But if they deny all except the indefinite confinement challenge, they will:

  • Deeply embarrass the local Democratic election officials who promoted claims of indefinite confinement and deflect onto them the blame for the messed-up election;
  • Not have to worry about overturning the national result, at the same time they reduce their worry about the state Legislature doing something truly disruptive, such as trying to overturn the election and appoint the electors themselves;
  • Reinforce their fellow Republicans’ messaging about voter fraud and give support to their future efforts to restrict mail-in voting;
  • Give Trump one final, face-saving court decision after his long string of embarrassing defeats in other states; and
  • Enforce their own decision of March 2020.

All that said, I have no crystal ball. I could be wrong, and the Wisconsin Supreme Court leave Wisconsin in Biden’s column. But it is definitely not as over-and-done as the national press is portraying it.

And, for what it’s worth, I think Wisconsin Democrats need to be prepared for an adverse decision. They should be thinking now not of how they will get even or how they will contribute to even more partisan bitterness and hatred, but of how they will work to make Wisconsin’s future elections better. This mess wouldn’t have gotten this bad if our election laws and practices were up-to-date and practical. Let’s start working on that.

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