MADISON – President Donald Trump for now is seeking a recount in two Wisconsin counties, but what he’s really doing is preparing for a lawsuit.
Why? Trump could see a long-shot chance of getting multiple states to change their vote totals. Or, a legal challenge could provide Trump fodder to keep his base revved up for a 2024 run, alleging the long-standing process of electing presidents that delivered former Vice President Joe Biden a victory was unfair.
The recount petition he filed Wednesday asked to throw out broad swaths of votes in the state’s two most Democratic areas — something the county clerks there are sure to reject.
But by pursuing the recount, Trump has given himself a vehicle for a lawsuit that would likely go before a judge by early December. It could quickly get to the state Supreme Court, where conservatives hold a 4-3 majority.
The influence of the high court would be felt from the start. Under state law, Supreme Court Chief Justice Patience Roggensack will get to choose which judge initially hears a recount lawsuit. She will also get to select the court that hears any appeals.
Democrats called Trump’s arguments against counting some ballots baseless and said clerks were unlikely to accept his claims when they begin recounting votes on Friday. But they also expressed worries that the state’s high court, with its history of siding with Republicans, could go along with a request to toss ballots in Milwaukee and Dane counties and shift the state’s 10 electoral votes from Biden to Trump.
A court changing the result of an election that was decided by more than 20,600 votes would be extremely rare, and there is no guarantee the justices would agree with Trump. Even if they did, changing Wisconsin’s results wouldn’t be enough to take away the presidency from Biden because of his victories in other states.
At a late-night meeting Wednesday to authorize the recount, Democrats and Republicans on the state Elections Commission could agree on little — other than that the recount is headed to court.
“This is going to be for the courts to decide. I don’t believe it’s for us to decide,” Republican Commissioner Dean Knudson told his colleagues.
Kyle Kondik, managing editor of Sabato’s Crystal Ball at the University of Virginia Center for Politics, said even if Wisconsin judges took the rare action of reversing the state’s election outcome, Trump would need two more states to follow suit for the effort to deliver him a second term.
“Let’s say they could say they could get a lawsuit in the Wisconsin Supreme Court that would flip the election … that would, to me, be unprecedented in modern times — something like that happening given the number of votes involved,” he said. “They would not only need that in one state they would need that in multiple states.”
Kondik said the Wisconsin effort could be about laying the groundwork for a 2024 campaign, but Trump would likely make the case the election was rife with fraud regardless.
“He’s behaving exactly the way I expected him to behave. … You could see it coming from a mile away. He questioned the integrity of the last election that he won,” Kondik said of the 2016 race. “He already is alleging those things and whether there’s a recount in Wisconsin or not wouldn’t change that sort of rhetoric. … I think the president’s rhetoric is irresponsible and not based in reality in a lot of ways, but just like any other losing candidate he has the right to abide by the rules.”
Jeffrey Mandell, a Madison attorney who has represented Democrats in election cases, said he thought Trump’s arguments lacked merit. Judges may quickly find that Trump took too long to file a legal challenge if he’s focused on practices that have been in place for years, Mandell said.
But he noted no one ever knows what will happen when a case, especially a high-stakes political one, is put before a court.
“Any time you take things to the court, you’re putting things into the hands of a small number of individual people who could do almost anything and I think that’s part of what’s going on (with Trump’s legal strategy),” said Mandell, who last month launched Law Forward, a legal center focused on election issues.
Barry Burden, director of the Elections Research Center at the University of Wisconsin-Madison, said the recount effort is clearly not actually about changing the election result given the margin.
Instead, he said, Trump’s goals could be to put a cloud over the election results, raise suspicions, and to lay groundwork for the future.
“He’s soothing his ego, he’s shaping his legacy. I think he’s protecting his brand also — he wants to leave office and do something,” Burden said. “So you can see why he would want to leave and not be deemed a loser … but why other people in his party in leadership are aiding and abetting this is really mysterious.”
Wisconsin Republicans have at least endorsed the idea of a recount and some have supported Trump’s allegations of fraud or irregularities without evidence. Burden said the allegiance, despite evidence debunking Trump’s allegations, is likely because Trump still has a significant influence in the Republican Party.
“There are a lot of voters out there who are enthusiastic about Trump so Republicans need to keep winning those votes to win their seats,” he said.
Trump has raised three main arguments against counting votes in Wisconsin.
To be valid, absentee ballots in Wisconsin must come in an envelope that is signed by the voter and a witness and include the witness’ address. In cases where witnesses don’t provide their addresses, clerks have been allowed to fill the addresses in if they know that information from talking to the voter, talking to the witness or looking at voter rolls, tax databases or other information.
That policy was set four years ago under guidance pushed by Republicans on the Elections Commission at the time, including Stephen King, who Trump later named as the U.S. ambassador to the Czech Republic. Trump didn’t dispute the state’s witness policy when he narrowly won Wisconsin in 2016, but he now says it is illegal. He argues only the voter or witness can write in the address.
Clerks say witnesses often forget to fill out their address or fail to supply a part of it, such as the city or ZIP code. In many cases, the witness is the spouse of the voter and lives at the same address.
Indefinitely confined voters
Most voters must provide a photo ID to get an absentee ballot, but those who identify themselves as indefinitely confined do not. This spring, Dane County Clerk Scott McDonell and Milwaukee County Clerk George Christenson suggested voters could label themselves as indefinitely confined if they were staying at home because of the coronavirus pandemic.
The state Republican Party sued and the state Supreme Court found the advice was faulty. The clerks rescinded their advice and pointed voters to guidance from the Elections Commission that noted it’s up to voters to determine for themselves whether they are indefinitely confined.
About 215,000 voters statewide called themselves indefinitely confined from the Nov. 3 election — up from 72,000 in a lower-turnout election for state Supreme Court last year.
Trump argues the ballots should be thrown out for voters who said they were indefinitely confined if they don’t meet the criteria. He hasn’t said how that would be determined for thousands of voters.
Absentee ballot applications
State law requires those who vote by mail and those who vote in person early to apply for absentee ballots in writing. In an apparent reference to those who voted early in person in Milwaukee, Trump contends more than 60,000 voters in the state’s most populous county didn’t submit written applications.
Those voters signed a statement on their ballot envelope that is labeled “absentee ballot application/certification.” That document has been treated as an application for an absentee ballot for more than a decade around the state, according to elections officials.
Court fight likely
The Democratic county clerks and their boards of canvassers are unlikely to give Trump much ground as they recount the vote.
Their review is expected to change the totals slightly, but not enough to change the outcome. A 2016 recount in the presidential contest resulted in a shift of 131 votes — nowhere near what Trump would need this time.
But during or after the recount, Trump can head to court if he doesn’t like the determinations of the canvassers.
Allies of Trump have compared the 2020 election outcome to the 2000 contest between Democrat Al Gore and George W. Bush, a Republican who ultimately was named the winner of the contest.
But the situations are different.
The 2000 presidential race was decided by fewer than 600 votes in Florida, where Bush was leading by a small margin when a recount was called. Gore was ahead in the popular vote nationally.
Now, Biden is ahead in both electoral votes and by nearly 6 million votes nationally.
In 2000, a recount of the presidential vote in Florida ended up at the U.S. Supreme Court — a case that left Bush as the winner in that race by halting the Florida recount.
Trump’s focus is on two counties
In Wisconsin, Trump is trying to eliminate ballots in two Democratic counties while leaving ballots unexamined in the other 70 counties. If he were to prevail, clerks would have to toss aside ballots for Biden while letting stand ballots for Trump that were cast in the same manner in other counties.
It comes as Trump’s campaign argues in court that Pennsylvania’s election system is unfair because voters there aren’t treated the same way. In that case, he contends absentee voters and in-person voters shouldn’t be treated differently.
Mark Thomsen, a Democrat on the Elections Commission from Milwaukee, called it unfair for Trump to allege clerks across the state conducted the election illegally but try to change votes in only two counties.
“I’ve never felt so attacked by — to say that it’s all unfair and then just pick out our county,” Thomsen said.
After the recount is complete, Biden can ask to conduct a recount in the rest of the state. He hasn’t said whether would do that, and time is against him because of the need to finalize the state’s vote.
The clock is ticking
The initial recount must be completed by Dec. 1, the deadline for the state Elections Commission to certify the state’s vote. If Biden were to ask for an additional recount, the state couldn’t meet that deadline.
Other, more pressing deadlines come soon after the state deadline.
Wisconsin has until Dec. 8 to certify its results under a federal law that establishes a safe-harbor date for determining its results. The Electoral College meets six days later, on Dec. 14, to determine the presidency. Congress counts the electoral votes on Jan. 6.
Missing the safe-harbor deadline would create the possibility that Congress, rather than Wisconsin officials, would determine the results of the state’s election.
Contact Patrick Marley at firstname.lastname@example.org. Follow him on Twitter at @patrickdmarley.