MADISON – President Donald Trump sued Wisconsin officials Tuesday in a last-ditch effort to reclaim a state he lost by about 20,700 votes.
The Republican president filed his suit against Democratic Gov. Tony Evers and election officials a day after the governor and the head of the state Elections Commission certified Joe Biden had won the state’s 10 Electoral College votes.
Trump has made little headway with lawsuits in other states and he faces an extraordinarily difficult path in Wisconsin.
Time is running short. Under the federal “safe harbor” law, the results determined by the state will be respected if challenges to the outcome are resolved by Dec. 8. The Electoral College meets on Dec. 14, and Congress is to count the electoral votes on Jan. 6.
Even if Trump changed the outcome in Wisconsin, Biden would remain on track to be sworn in next month because of his victories in other states.
Wisconsin law says challenges to election results are to be brought in circuit court, but Trump filed his lawsuit with the state Supreme Court, where conservatives hold a 4-3 majority.
The justices told Evers to file a brief on the lawsuit by 8:30 p.m. Tuesday, signaling they want to decide quickly whether to take the case.
Trump is asking the high court to revoke Evers’ certification of the election and revive a partial recount of votes in Milwaukee and Dane counties, the most populous and liberal counties in the state. Trump paid $3 million for that recount, but the process ended up worsening his losing margin by dozens of votes.
Trump wants hundreds of thousands of ballots thrown out, in many cases because of technicalities. For instance, he alleges the process election officials have used for more than a decade to conduct in-person early voting is illegal.
He does not, however, allege ballots cast the same way in other counties of Wisconsin are illegal.
His challenges were rejected by the boards of canvassers in Milwaukee and Dane counties during the recount, but Trump wants the high court to order those boards to reject such ballots.
The lawsuit challenges more than 220,000 ballots cast in Dane and Milwaukee counties, alleging election officials broke the law by continuing the longstanding practice of early voting, allowing voters to avoid the voter ID law by labeling themselves indefinitely confined, allowing clerks to fill in missing information on absentee ballot envelopes and collecting absentee ballots in Madison parks.
“With Gov. Evers’ premature certification, he is saying the president of the United States has no right to go to court in order to have illegal ballots examined,” Jim Troupis, lead attorney for the Trump campaign in Wisconsin, told Fox News in an interview. “He’s not saying we have a frivolous lawsuit — he is saying we have no right to judicial review — that’s another level of bad.”
However, Democrats have not said Trump can’t bring a lawsuit, as Troupis claimed.
Ann Jacobs, the Democratic chairwoman of the state Elections Commission, this week said the certification of the election is what cleared the way for Trump to file a lawsuit.
Troupis, who is seeking to throw out his own early vote along with others, said he “will not back down when it comes to upholding the law or protecting the integrity of our elections.”
Rudy Giuliani, Trump’s personal attorney, claimed the lawsuit seeks to restore trust voters have in the electoral process in Wisconsin.
“As we have said from the very beginning of this process, we want all legal votes and only legal votes to be counted,” Giuliani said.
Biden campaign spokesman Nate Evans called the lawsuit baseless.
“The truth is clear: Joe Biden decisively won Wisconsin by more than 20,000 votes and yesterday the governor certified the result,” he said in a statement. “The hundreds of thousands of Wisconsinites targeted by this lawsuit did nothing wrong.”
Wisconsin Attorney General Josh Kaul, a Democrat, said the Trump campaign is seeking to create a “two-tiered system for votes cast in the presidential election, with citizens from two of our counties subject to disenfranchisement under much stricter rules than citizens in the rest of the state.”
Kaul, who oversees the state Department of Justice that will defend the state in the suit, said the department will “continue protecting the will of Wisconsin voters.”
Also on Tuesday, a former attorney for Trump filed a lawsuit on behalf of a Republican candidate for Congress who lost his election on Nov. 3. But Derrick Van Orden, who lost to U.S. Rep. Ron Kind, told Wispolitics he had no knowledge of the lawsuit.
“I learned through social media today that my name was included in a lawsuit without my permission,” Van Orden told Wispolitics.
Former Trump attorney Sidney Powell, among other attorneys, filed the federal lawsuit seeking a new election for Van Orden in the 3rd Congressional District and for Evers to declare Trump the winner of the election instead of Biden, who received the most votes.
Elections commissioners spar
The certification of Wisconsin’s vote sparked outrage from Republicans on the Elections Commission, who asked Jacobs to resign as chairwoman on Tuesday. She declined, saying she had not done anything wrong.
Republicans said Jacobs should not have signed off on the results Monday, arguing the entire commission should have had a say in the matter.
State law gives the commission’s leader the power to confirm election results, but Republicans argue the commission should be consulted before forwarding them to the governor for certification.
“I’ve lost all confidence in you as the chair,” Republican Commissioner Dean Knudson told Jacobs. “You have destroyed the bipartisan nature of what has gone on.”
Republican Commissioner Robert Spindell said Jacobs and other Democrats were trying to hurt Trump’s chances in court.
“Obviously this is long-range Democratic planning solely to mess up the Trump campaign,” he said.
Jacobs rejected the claims that she had acted improperly.
“I am not withdrawing as chair,” she said. “What I did was not illegal.”
Democratic Commissioner Mark Thomsen said he handled the election results the same way Jacobs did when he was chairman in 2016. No one asked him to resign then, when Trump narrowly won Wisconsin.
“The only thing I see that’s different is Ann Jacobs is a woman and I’m a white guy,” Thomsen said.
Lawsuit targets GOP-backed policies
Before Trump filed his lawsuit, his allies brought two lawsuits that seek to have the Republican-controlled Legislature, rather than voters, decide how to cast Wisconsin’s electoral votes. Like Trump’s lawsuit, those cases were filed with the state Supreme Court, but the justices have not said whether they will take them up.
With his wide-ranging challenges, Trump is calling into question an election system built by Republicans over eight years when they controlled all of state government. He is concentrating his challenges on liberal parts of the state, but in some cases is asking to throw out ballots cast by GOP lawmakers and board members of the Republican Party of Milwaukee County.
In-person early voting
Wisconsin allows residents to vote early in person if they submit an application for a ballot and certify that they are the one who filled it out. For more than a decade, election officials have allowed voters to fill out a ballot in person, place it in an envelope and sign a form on the envelope that counts as both the application and the certificate.
Trump argues that process is flawed, saying a separate application must be filed first. He wants to throw out more than 170,000 in-person ballots in Milwaukee and Dane counties, but not conservative counties.
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. He wants about 5,500 absentee ballots in Dane and Milwaukee counties thrown out because poll workers filled in all or part of witness addresses.
Indefinitely confined voters
Most voters must provide a photo ID to get an absentee ballot, but those who identify themselves as indefinitely confined because of age or disability 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 for the Nov. 3 election — up from 72,000 in a lower-turnout election for state Supreme Court last year.
Trump is asking the Supreme Court to toss more than 28,000 absentee ballots from voters in Dane and Milwaukee counties who identified themselves as indefinitely confined after the clerks offered their flawed guidance in March.
Since then, clerks around Wisconsin sent letters to voters who had called themselves indefinitely confined asking them whether they met the criteria.
‘Democracy in the Park’ events
Trump is also challenging more than 17,000 ballots cast during Madison’s “Democracy in the Park” events, where poll workers were stationed at more than 200 locations in the city. The poll workers accepted absentee ballots that voters received through the mail and served as witnesses if they needed one.
Trump contends such events aren’t allowed under state law, saying absentee ballots must be returned by mail or in person in clerks’ offices. City officials have said the poll workers served the same purpose as ballot drop boxes that were set up around the state.
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