MADISON – President Donald Trump and his allies are bombarding state and federal judges across the country with lawsuits seeking to change the outcome of the presidential election — the latest in a Wisconsin federal court.
Trump called on a federal judge late Wednesday to respond to the case within 48 hours as the president seeks to find a foothold in a courtroom before the Electoral College meets in 11 days to finalize the election for President-elect Joe Biden.
The lawsuit by the Trump campaign challenges absentee voting in Wisconsin by arguing it discriminates against “able-bodied” voters, that broad availability of voting by mail contradicts the Wisconsin Legislature’s disfavor of such voting, and because ballot drop boxes were not manned.
“While everyone understands that public officials working in cities and towns across Wisconsin are dedicated and selfless, it should not be a moment of pride that the Wisconsin Elections Commission offered so little guidance that absentee ballots could be intermingled with library books and utility bills,” the suit argues.
On Thursday, the case was assigned to Judge Brett Ludwig in the eastern district court in Milwaukee. Trump named Ludwig to the seat earlier this year to fill the long-vacant seat of Judge Rudolph Randa, who died in 2016. The U.S. Senate confirmed Ludwig on Sept. 9.
That action came hours before the Wisconsin Supreme Court declined to hear a separate case filed by Trump attorneys. That case, which seeks to nullify more than 200,000 votes cast in Milwaukee and Dane counties, is likely to be refiled in state circuit court.
Jeffrey Mandell, an attorney representing Democratic Gov. Tony Evers in the state case, said the federal lawsuit “is an untoward effort to obtain two bites at the same apple.”
“Not content to try to disenfranchise over 200,000 Wisconsinites in state court, the President is now asking a federal court to take Wisconsin’s choice for President away from voters and to give it to politicians,” Wisconsin Attorney General Josh Kaul said. “Democracy doesn’t work that way. No matter how many lawsuits are filed, we’ll keep standing up for Wisconsin voters.”
Trump’s attorneys argue in the federal suit that the Wisconsin Elections Commission should not have issued guidance for the Nov. 3 election that told election clerks to fill in missing addresses for absentee voting witnesses, and that its guidance involving indefinitely confined voters resulted in more people than are indefinitely confined claiming the status, which allows voters to bypass the state’s photo identification requirement.
Jenna Ellis, one of the president’s attorneys, urged Wisconsin state lawmakers to intervene.
“We hope that the State Legislatures in every affected State will take up this battle to protect the voters in their State. This is a solemn responsibility the Constitution entrusts directly to State Legislatures,” Ellis said in a statement.
That prospect may be unlikely in Wisconsin. This week Assembly Majority Leader Jim Steineke, R-Kaukauna, tweeted a clip of actor Dana Carvey playing President George H.W. Bush saying, “Not gonna do it” in response to a headline about whether the Legislature could change the state’s slate of electors.
Wednesday’s lawsuit is one of five that have been filed in Wisconsin since the Nov. 3 election, when Biden defeated Trump by more than 20,000 votes. A subsequent partial recount paid for by Trump showed a similar margin.
The new legal challenge claims the risk of voter fraud increased on Nov. 3 because of policies put in place by election officials to help residents vote safely during the coronavirus pandemic, which included ballot drop boxes, for example.
It also asks a judge to put the state’s GOP-controlled state Legislature in control of the election outcome by sending the case to the Legislature “to determine the appropriate remedy for the constitutional violation(s) established, including any impact upon the allocation of Presidential electors for the State of Wisconsin.”
Aides to Assembly Speaker Robin Vos and outgoing Senate Majority Leader Scott Fitzgerald did not immediately say whether they supported the request.
Trump’s attorneys argue voters had an illegal level of access to voting by mail even during a pandemic, which meant thousands of ballots were counted that shouldn’t have been “based on the improper and inaccurate claim that the COVID-19 pandemic continued to justify a wide-scale failure to apply Wisconsin voting laws.”
“There could be no reasonable or lawful contention that the COVID-19 pandemic provided an excuse to avoid Wisconsin’s election laws,” the lawsuit argues.
Trump’s attorneys say state lawmakers made clear after the April 7 spring election “that the COVID-19 pandemic did not change mandatory provisions of Wisconsin election law which still could and should be applied uniformly during the pandemic” but that the state elections commission did not withdraw guidance on how to vote safely.
The attorneys cite an opinion column written by Senate President Roger Roth and Steineke, both Republicans, against Evers’ proposal to provide absentee ballots to all registered voters. But that idea never happened.
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.
The lawsuit was filed against five of six members of the Wisconsin Elections Commission, Evers, mayors and election officials in five liberal-leaning cities, and Secretary of State Doug La Follette, even though he does not oversee elections.