MADISON – The state Supreme Court upheld Democrat Joe Biden’s Wisconsin win Monday, handing President Donald Trump a defeat less than an hour before the Electoral College met.
The 4-3 ruling was the latest in a string of dozens of losses for the president across the country as Republicans pursue last-gasp efforts to give Trump a second term. Just after the decision was issued, the Electoral College cemented Biden’s national victory.
In the majority, conservative Justice Brian Hagedorn joined the court’s three liberals to confirm Biden’s win. They found one of Trump’s arguments was without merit and his others were brought far too late.
Trump’s challenges to Wisconsin’s voting laws “come long after the last play or even the last game,” Hagedorn wrote for the majority. “(Trump) is challenging the rulebook adopted before the season began.”
The three other conservatives on the court dissented, writing they believed clerks violated the law with some election practices. They argued the majority should have taken on the merits of Trump’s arguments instead of sidestepping them by saying he’d filed his lawsuit too late.
“Once again, four justices on this court cannot be bothered with addressing what the statutes require to assure that absentee ballots are lawfully cast,” Chief Justice Patience Roggensack wrote for the dissenters.
Alongside Hagedorn in the majority were Justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky. In dissent were Roggensack and Justices Rebecca Bradley and Annette Ziegler. (The Bradleys are not related.)
Monday’s ruling marked the fourth time in a week and a half that the same coalition of justices ruled against Trump and his allies.
Biden edged out Trump in Wisconsin by 21,000 votes, or 0.6%. It was a winning margin of about the size Trump enjoyed four years ago.
Trump paid $3 million for a recount in Dane and Milwaukee counties, but the recount slightly widened Biden’s win.
He challenged the results directly with the state Supreme Court, but the justices rejected it on a 4-3 vote early this month, telling him state law required him to start in a lower court.
Trump brought a new lawsuit and Reserve Judge Stephen Simanek ruled against him Friday. The state Supreme Court held arguments in his appeal on Saturday and ruled against him Monday, allowing the state’s 10 Electoral College votes to go to Biden.
Nationally, Biden received 306 electoral votes and Trump 232. Even if the state Supreme Court had reversed Wisconsin’s results, Biden would still be set to claim the presidency in January.
Trump targeted 220,000 votes
Trump sought to throw out more than 220,000 ballots cast in Milwaukee and Dane counties, the state’s most populous and most Democratic areas. He wanted to let stand ballots that were cast the same way in the state’s 70 other counties.
Trump attorney Jim Troupis contended clerks had broken the law by filling in the addresses of witnesses on absentee ballot envelopes. With the support of Republicans, the state Elections Commission four years ago told clerks they could do that if they were able to confirm the addresses.
In some cases, clerks filled in full addresses, but in many others they added only part of the addresses, such as the city or state.
The majority did not weigh in on that argument, saying it was among those Trump waited too long to raise.
The dissenters contended that having clerks fill in the addresses violated the law, and Monday’s writing suggested that view could prevail at least in part in future litigation. That’s because two of the justices in the majority, Hagedorn and Ann Walsh Bradley, suggested in a concurring opinion that clerks could not fill in entire addresses for witnesses. (They argued they might be able to fill in partial addresses.)
The majority opinion acknowledged that issue or another could be before the courts in the future.
“Nothing in our decision denying relief to (Trump) would affect the right of another party to raise substantive challenges,” the majority wrote.
‘Democracy in the Park’ events challenged
Troupis also challenged “Democracy in the Park” events held this fall in Madison. On two Saturdays, the city placed poll workers in more than 200 locations to collect absentee ballots from voters who had received them through the mail. The poll workers also served as witnesses to those who needed them.
Election officials said putting poll workers in parks amounted to having “human drop boxes” around the city.
The majority didn’t wade into the events because it found Trump should have raised objections to them before the election.
“The time to challenge election policies such as these is not after all ballots have been cast and the votes tallied,” the majority wrote.
In their concurring opinion, Hagedorn and Ann Bradley wrote that they believed the “Democracy in the Park” events were valid. The other two in the majority, Dallet and Karofsky, did not directly opine on them.
The three dissenters called the “Democracy in the Park” events improper. They went on to raise questions about the legality of absentee ballot drop boxes — something Trump did not challenge in the lawsuit before the high court.
Indefinitely confined voters
In one far-reaching claim, Troupis challenged the rules that allow voters to get absentee ballots without providing a photo ID if they say they are indefinitely confined because of age or disability. The number of voters claiming that status increased this year and Troupis cast doubt on whether some met that criteria.
Others said an increase isn’t a surprise amid the coronavirus pandemic and noted many of those claiming to be indefinitely confined had a copy of their ID on file with clerks. More than 215,000 voters claimed to be indefinitely confined for the Nov. 3 election — nearly four times as many as the 57,000 who identified themselves that way in 2016.
The justices addressed the issue in a separate decision they released earlier in the morning Monday. In that ruling — from a case brought this spring by the state Republican Party — the court found it was up to voters themselves to determine whether they are indefinitely confined.
That decision did not give Trump a way to throw out large numbers of ballots based on the theory that some people may have violated the indefinite confinement rules.
In-person early voting
In his most sweeping argument, Troupis claimed in-person early voting had been conducted illegally in much of the state for over a decade. He contended state law requires voters to fill out two forms instead of one and maintained that his own ballot should be thrown out because he had filled out only one form, as directed by his clerk.
Troupis was also seeking to toss the votes of the state Republican Party’s executive director, members of the Milwaukee County Republican Party’s board, Republican state Sen. Alberta Darling of River Hills and Republican Rep. Jessie Rodriguez of Oak Creek.
State law requires voters to apply for absentee ballots, including ones cast in person, in writing. They must also fill out a form certifying they filled out the ballots submitted in their name.
State election officials more than a decade ago created a single form that fulfills both requirements. It is printed on the back of ballot envelopes and is widely used.
But Troupis argued the form was invalid and that separate documents were needed.
He got nowhere with that argument, even from the dissenters.
The majority concluded Trump had waited too long with his challenge and the dissenters disagreed with Trump’s claim that two forms are needed to vote early in person.
Hagedorn center stage again
The ruling in the Trump case again put a spotlight on Hagedorn, who has cheered Democrats and frustrated Republicans by sometimes siding with the court’s liberals.
He joined the liberals in the three earlier cases this month that delivered setbacks to Trump and his allies. He also agreed with the liberals in declining to quickly take a case regarding the state’s voter rolls and refusing to allow the Green Party’s presidential ticket on the ballot this fall.
He also parted with conservatives by supporting Democratic Gov. Tony Evers’ plan to fight the coronavirus pandemic this spring with a stay-at-home order. In that case, the other Republican-backed justices were able to strike down the order because they had a larger majority then.
The most pointed criticism during Saturday’s arguments came from Karofsky, who won a seat on the high court this year. In an interview before her election, she expressed frustration with Trump, saying there were so many reasons she opposed him she didn’t know where to start.
Karofsky and Dallet wrote a brief concurring opinion Monday that noted Trump had not alleged fraud in Wisconsin, despite tweeting and talking incessantly about fraud since losing the election.
“The President failed to point to even one vote cast in this election by an ineligible voter; yet he asks this court to disenfranchise over 220,000 voters. The circuit court, whose decision we affirm, found no evidence of any fraud,” the pair wrote.
Other setbacks for Trump
Monday’s ruling was the eighth one against Trump in 12 days in seven cases that challenged the results in Wisconsin. The state Supreme Court ruled against him four times and the U.S. Supreme Court, Simanek and two federal judges in Milwaukee each ruled against him once.
Trump and his backers have appealed the rulings from the federal judges in Milwaukee, but their chances appear bleak because of the U.S. Supreme Court’s recent ruling and the fast-approaching Electoral College meeting.
Some Republicans are considering challenging the results of the election when Congress counts the electoral votes on Jan. 6. Pulling off such an effort would be unprecedented.
Contact Patrick Marley at email@example.com. Follow him on Twitter at @patrickdmarley.