A federal judge signaled Thursday he was unlikely to hand Wisconsin’s 10 electoral votes over to the Republican-run Legislature instead of the state’s citizens, as President Donald Trump is seeking.
“It’s not lost on me that this is a political case, obviously, and that the relief that’s been requested, if that relief were granted, this would be a most remarkable proceeding and probably the most remarkable ruling in the history of this court or the federal judiciary,” U.S. District Judge Brett Ludwig said during a virtual hearing.
It was a bad sign for Trump, who has faced a string of legal setbacks in Wisconsin over the last week as he tries to lay claim to a state he lost by about 21,000 votes, or 0.6 percentage points. Courts have thrown out four lawsuits in the last week over Wisconsin’s election.
In addition to his federal lawsuit, Trump is pursuing a challenge to Wisconsin’s results in state court. A hearing will be held in that case Friday.
The two cases must be resolved soon because the Electoral College meets Monday. Wisconsin officials have certified Biden as the winner.
In his federal lawsuit, Trump is asking Ludwig to throw out Wisconsin’s results and let the Legislature decide how to cast the state’s electoral votes.
Ludwig, a Trump nominee who was confirmed for his spot on the court in September, said he would rule within a couple of days. He suggested Trump had waited too long to file his lawsuit, noting he was challenging long-standing election procedures.
“I don’t think I heard a very good explanation today as to why the plaintiff didn’t raise these issues in advance of the election, before — when the guidance was issued,” he said, referring to advice the Wisconsin Elections Commission gave to clerks.
“The plaintiff, fully on notice of all that guidance, some of it dating back years, took no effort to get it corrected.”
His comments Thursday were not his first expressing skepticism of Trump’s chances before him. In hearings over the last week he has called the president’s request odd and asked why Trump isn’t going to the Legislature instead of him.
The president argues the election was tainted because he considers some of Wisconsin’s practices to be improper. He contends the state’s decade-long system of allowing people to vote early in person is invalid because he believes voters should have to fill out two forms instead of one when they vote that way.
In addition, the president says clerks should not have been allowed to set up absentee ballot drop boxes or fill in the addresses of witnesses on absentee ballot envelopes when they were missing. The policy for witness addresses started four years ago under a policy advanced by Republicans on the Elections Commission.
Trump also argues some voters improperly labeled themselves indefinitely confined, which allowed them to vote absentee without providing a copy of a photo ID. State law leaves it to voters to determine if their age or a disability renders them indefinitely confined. About 215,000 voters claimed that status for November, up from about 72,000 for a lower-turnout election last year.
Trump is also challenging the authority of Madison officials to hold “Democracy in the Park” events this fall where poll workers accepted absentee ballots from voters in over 200 spots around the city. Madison officials argue the setup was allowed under state law.
Trump is making similar arguments in his state case, which is being heard by Reserve Judge Stephen Simanek. Trump brought that lawsuit after the state Supreme Court last week rejected a claim he filed directly with the high court.
Simanek is expected to rule soon after holding a Friday hearing. The losing side can appeal, but time is running out because of Monday’s meeting of the Electoral College.
Other federal lawsuit dismissed
Meanwhile, U.S. District Judge Pamela Pepper dismissed a third lawsuit late Wednesday brought by William Feehan, chairman of the La Crosse County Republican Party. Feehan is represented by Sidney Powell, who was recently dropped from Trump’s legal team after she made outlandish claims about hacked voting machines that are at the heart of Feehan’s suit and others Powell has brought around the country.
Pepper, who was nominated to the bench in 2014 by President Barack Obama, concluded federal courts do not have jurisdiction to compel Democratic Gov. Tony Evers to certify the election in Wisconsin for Trump.
“Federal judges do not appoint the president in this country,” Pepper wrote. “One wonders why the plaintiffs came to federal court and asked a federal judge to do so.”
Hours later, Feehan appealed the case to the U.S. 7th Circuit Court of Appeals in Chicago.
Also this week, the attorney general of Texas filed a lawsuit with the U.S. Supreme Court seeking to invalidate the electoral votes of Wisconsin and other swing states. That lawsuit is considered a long shot by legal observers.
U.S. Rep. Tom Tiffany, a Republican who represents the 7th Congressional District in northern Wisconsin, was among 106 House Republicans to sign on to a brief that supports the Texas lawsuit. He was the only member of the Wisconsin delegation to do so.
On Friday, Republican lawmakers in Wisconsin plan to hold a hearing to look into how the election was conducted. That could result in legislation changing how future elections are run, though some legislators have said they want to see if they can change Wisconsin’s slate of presidential electors.
Bill Glauber of the Journal Sentinel contributed.
Contact Patrick Marley at firstname.lastname@example.org. Follow him on Twitter at @patrickdmarley.