MADISON – For the third time in less than 30 hours, four justices on the state Supreme Court dealt President Donald Trump a setback Friday, saying they wouldn’t accept a lawsuit by Trump allies who wanted to let Republican lawmakers instead of voters decide how to cast the state’s electoral votes.
As with two decisions Thursday, Friday’s ruling was 4-3, with conservative Justice Brian Hagedorn joining the court’s liberals to rebuff the president as he seeks to take away Democrat Joe Biden’s narrow win of the state.
“The relief being sought by the petitioners is the most dramatic invocation of judicial power I have ever seen,” Hagedorn wrote.
“While the rough and tumble world of electoral politics may be the prism through which many view this litigation, it cannot be so for us. In these hallowed halls, the law must rule.”
The ruling came just hours after a federal judge appointed by Trump expressed skepticism toward a separate challenge to the election results brought by the president.
The case before the state Supreme Court was filed by the Wisconsin Voters Alliance, a conservative group formed this fall in Kewaunee County that maintained the election was conducted improperly. The group raised some of the same arguments Trump did in a lawsuit that the justices threw out on Thursday.
Hagedorn expressed alarm at the group’s request to throw out nearly 3.3 million votes, calling it a “real stunner.”
“We are invited to invalidate the entire presidential election in Wisconsin by declaring it ‘null’ — yes, the whole thing,” wrote Hagedorn, who served as chief counsel to Republican Scott Walker when he was governor.
“This is a dangerous path we are being asked to tread. The loss of public trust in our constitutional order resulting from the exercise of this kind of judicial power would be incalculable.”
Alongside Hagedorn in the majority were Justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky.
In dissent, Chief Justice Patience Roggensack picked apart Hagedorn’s focus on the request to invalidate every vote. Hagedorn “has the cart before the horse,” she wrote.
“We grant petitions to exercise our jurisdiction based on whether the legal issues presented are of statewide concern, not based on the remedies requested,” she wrote.
She contended Hagedorn and the others were refusing to ensure the election was fair with their refusal this week to take up challenges from Trump, the voters alliance and a Wisconsin man who argued the absentee ballot drop boxes the state used were illegal.
“This is the third time that a majority of this court has turned its back on pleas from the public to address a matter of statewide concern that requires a declaration of what the statutes require for absentee voting,” wrote Roggensack, who was joined in her dissent by Justices Rebecca Bradley and Annette Ziegler. (The Bradleys are not related.)
Trump-appointed judge questions federal case
The ruling was not the only legal setback for Trump on Friday.
In a case brought by Trump in federal court, U.S. District Judge Brett Ludwig told an attorney for the president he was asking for “pretty remarkable declaratory relief” by asking to have the fate of Wisconsin’s 10 electoral votes decided by the Legislature instead of voters.
He questioned whether the case should even be before him, noting Trump is arguing the Legislature has the power under the U.S. Constitution to decide who to send to the Electoral College.
“If that’s the case, why are we doing anything in this court and if that’s the appropriate arena for a remedy, why isn’t the plaintiff going to the Legislature?” asked Ludwig, a Trump appointee who was confirmed by the U.S. Senate in September.
Trump attorney William Bock said the president needed the court to determine the election that Biden won by about 21,000 votes was flawed so that the issue could be handed off to lawmakers.
Ludwig remained dubious that such a question was one a federal court could decide.
“I get the argument but I have a very, very hard time seeing how this is justiciable in the federal court,” Ludwig said.
He added that Trump’s lawsuit was “really bizarre” because it asks to “remand” the case to the Legislature, noting that remanding a case typically means returning it to a lower court for reconsideration.
“I think the term ‘remand’ might be inartful,” Bock responded.
Ludwig scheduled a hearing for Thursday, but his comments suggested Trump faces a difficult road in the case.
Trump began his multipronged legal attack this week with his lawsuit before the state Supreme Court and the one in federal court.
After the state Supreme Court rejected the first case, Trump brought new lawsuits late Thursday in Dane and Milwaukee counties. Those cases have been combined into one challenge and Reserve Judge Stephen Simanek said Friday he would hold a hearing in that case late next week.
The hearings in state and federal court will occur after Tuesday, the “safe harbor” date set in federal law. That law says Congress will respect the electoral votes of states that resolve election disputes by then.
A far more significant date is Dec. 14, when the Electoral College meets.
“Dec. 14 is a hard stop,” said Edward Foley, the head of the election law program at the Moritz College of Law at Ohio State University.
As long as the state’s electors meet that day, the state’s electoral votes will likely count, he said.
Congress will tally the electoral votes on Jan. 6 and the president will be sworn in on Jan. 20.
Election results show Biden has 306 electoral votes and Trump has 232. That means even if Trump flips Wisconsin’s electoral votes, Biden will still claim the presidency.
In his federal lawsuit, Trump alleges the election was run improperly because absentee ballot drop boxes were not staffed, mail voting was widely used and voters who said they were elderly or disabled were able to vote absentee without having to provide a photo ID.
The state Elections Commission told local officials they could set up ballot drop boxes if they were secure, the state has long allowed no-excuse voting by mail and for years has allowed the elderly and disabled to vote absentee without having to provide an ID.
Contact Patrick Marley at firstname.lastname@example.org. Follow him on Twitter at @patrickdmarley.