I’m writing this noonish on Wednesday, Dec. 2, and it’s possible I won’t get this posted before the Supreme Court decides. As expected, the Trump campaign did file a lawsuit to throw out thousands of contested ballots, and the defendants (Gov. Evers, the Wisconsin Elections Commission, and the two counties) have filed their responses.
Two things surprised me about the Trump petition: First, they filed in the state Supreme Court when the law clearly says that appeals of recounts need to start in circuit court. Yeah, it’s a dumb law, but so are the laws that they claim the county officials violated. But Evers’ petition hit them on that and if the state Supreme Court wants to throw out the Trump petition, it seems to me they could do it on that alone. (That might make the Legislature do something stupid, though.)
And the fact that Trump’s lawyers went straight to the Supreme Court gives me the sense that their intentions have more to do with publicity than victory.
Second, the Trump petition had four major complaints–the three I mentioned in my earlier blog post, and a fourth that involves only the City of Madison. Before early voting started, the City held an event in September called “Democracy in the Park,” in which they set up tables in more than 200 city parks to register voters and collect absentee ballots. The Trump campaign isn’t complaining that these little park tables registered voters or handed out forms with which voters could request absentee ballots–that part was fine. They argue that helping the voters complete the absentee ballot envelopes and collecting them turned the little tables into de facto polling stations, which violated state law in many ways.
As for the ‘indefinitely confined’ voters, it turns out the number of those ballots that the Trump campaign is contesting wouldn’t be enough to overturn the statewide results anyway. The Trump campaign didn’t object to the ones who had claimed indefinite confinement in the past; to the ones who didn’t vote anyway; and the ones that did submit Voter ID. So in the end, the campaign objected to 28,395 ballots. If only that many ballots are discarded randomly, a large number of Trump’s votes will also be discarded, and it might not change the outcome.
Evers’ response is pretty much as expected, relying heavily on timing issues. One example: Evers points out that the Trump campaign clearly knew about the Democracy in the Park event even before it happened and did not sue then. Now that thousands of ballots were cast, Evers says the Court should not accept their complaint. There’s real law and precedent behind Ever’s claim; it’s not just whining.
The argument in Evers’ response that most surprised me was a good one, though I’d never heard it before. Evers’ lawyers point out that throwing out the contested ballots would violate a 150-year-old federal law, 52 U.S.C. §10101(a)(2)(B), which prohibits denying any registered voter the right to vote in an election based on an immaterial error or omission under state law. They write: “President Trump (did) not allege fraud. Rather, they allege a series of purported instances of technical noncompliance with state election law. Under federal law, though, the standard imposed for ballot acceptance must directly relate to determining voter qualification. Any requirement that is not material to that specific function cannot be the basis for denying the right to vote. Disqualifying a ballot for any reason other than those related to determining qualification to vote is impermissible under federal law.“
If I was the Supreme Court and wanted to avoid making a decision in this case, that’s the law I’d point to. “I’m not going to tell you whether I want to throw those ballots out, because it doesn’t matter. Federal law says I can’t.”
I’m going to try to sit back now and keep quiet until the dust settles. Regardless of what the Court decides, this whole mess has revealed a lot of flaws in Wisconsin election practices and in state laws–both for running elections and for contesting the results. Read the Evers petition, for example, and assume they are correct about recount law (They are.) See if you can figure out how anyone could ever contest the results of a Wisconsin presidential election. No, Trump didn’t comply with all those laws, but there are Catch-22s all over the place, with timing, with the amount of money you’d need to contest statewide instead of just a few counties, and more. Someday, a more attractive candidate might have more well-founded concerns, and our laws won’t provide that candidate with any better avenue for protesting and getting the errors corrected.
If we are serious about desiring our elections to be run fairly, transparently, and reliably, we will definitely want to clean some stuff up.