In a 4-3 decision, the Wisconsin Supreme Court decided against taking directly President Donald Trump’s lawsuit attempting to overturn the results of the November 3 election. Instead, Trump will have to take his case through circuit court as state law requires.
Conservative Justice Brian Hagedorn sided with the three court liberals, Justice Ann Walsh Bradley, Justice Rebecca Dallet and Justice Jill Karofsky, in refusing to allow the Supreme Court to hear the case first. Hagedorn wrote the majority decision.
“I understand the impulse to immediately address the legal questions presented by this petition to ensure the recently completed election was conducted in accordance with the law,” Hagedorn wrote. “But challenges to election results are also governed by law. All parties seem to agree that Wis. Stat. § 9.01 (2017–18)1 constitutes the ‘exclusive judicial remedy’ applicable to this claim. § 9.01(11).”
Hagedorn then continued to explain how the section guided his decision.
“This section provides that these actions should be filed in the circuit court, and spells out detailed procedures for ensuring their orderly and swift disposition. See § 9.01(6)–(8),” Hagedorn wrote. “Following this law is not disregarding our duty, as some of my colleagues suggest. It is following the law.”
The law, cited by Hagedorn, states the following:
Within 5 business days after completion of the recount determination by the board of canvassers in all counties concerned, or within 5 business days after completion of the recount determination by the commission chairperson or the chairperson’s designee whenever a determination is made by the chairperson or designee, any candidate, or any elector when for a referendum, aggrieved by the recount may appeal to circuit court.
The law also accounts for cases that are multi-jurisdictional in nature, such as the suit by Trump which would be in Dane and Milwaukee Counties.
If an appeal is filed from a recount determination in an election which is held in more than one judicial circuit, the chief judge of the judicial administrative district in which the election is held shall consolidate all appeals relating to that election and appoint a circuit judge, who shall be a reserve judge if available, to hear the appeal. If the election is held in more than one judicial administrative district, the chief justice of the supreme court shall make the appointment.
In her dissent, Chief Justice Pat Roggensack, joined by Justice Annette Ziegler, said the Supreme Court is not bound by statute to limit which cases the court takes directly.
“Our jurisdiction arises from the Wisconsin Constitution and cannot be impeded by statute,” Roggensack wrote, and then referenced a 2016 case as precedent. “Furthermore, time is of the essence.”
However, Roggensack conceded the necessity of involving the circuit courts in the process.
“I agree that the circuit court should examine the record presented during the canvasses to make factual findings where legal challenges to the vote turn on questions of fact,” the Chief Justice wrote. “However, I dissent because I would grant the petition for original action, refer for necessary factual findings to the circuit court, who would then report its factual findings to us, and we would decide the important legal questions presented.”
Roggensack also questioned in her dissent whether the request by the Trump campaign to throw out over 200,000 ballots could ever be an appropriate remedy to incorrect interpretation of the law by the Wisconsin Election Commission (WEC).
“We, as the law declaring court, owe it to the public to declare whether WEC’s advice is incorrect,” Roggensack wrote. “However, doing so does not necessarily lead to striking absentee ballots that were cast by following incorrect WEC advice. The remedy Petitioners seek may be out of reach for a number of reasons.”
Justice Rebecca Bradley took a sharper tone in her attack upon the majority’s decision in her dissent, calling the majority position, “a death blow to democracy.”
The Wisconsin Supreme Court forsakes its duty to the people of Wisconsin in declining to decide whether election officials complied with Wisconsin’s election laws in administering the November 3, 2020 election. Instead, a majority of this court passively permits the Wisconsin Elections Commission (WEC) to decree its own election rules, thereby overriding the will of the people as expressed in the election laws enacted by the people’s elected representatives. Allowing six unelected commissioners to make the law governing elections, without the consent of the governed, deals a death blow to democracy. I dissent.
Bradley also claims her dissent, in which she is joined by Justices Roggensack and Ziegler, that all future elections will be “tarnished” unless the court has its say.
The majority takes a pass on resolving the important questions presented by the petitioners in this case, thereby undermining the public’s confidence in the integrity of Wisconsin’s electoral processes not only during this election, but in every future election. Alarmingly, the court’s inaction also signals to the WEC that it may continue to administer elections in whatever manner it chooses, knowing that the court has repeatedly declined to scrutinize its conduct. Regardless of whether the WEC’s actions affect election outcomes, the integrity of every election will be tarnished by the public’s mistrust until the Wisconsin Supreme Court accepts its responsibility to declare what the election laws say.
Roggensack, as the state statute allows, ordered the Trump cases in Milwaukee and Dane Counties consolidated and the assigned the case to Reserve Judge Stephen Simanek of Racine County.
The Wisconsin Supreme Court also decided Thursday, again in a 4-3 decision, not to hear another lawsuit seeking to overturn the presidential election in Wisconsin. The lawsuit was filed on behalf of Dean Mueller of Chippewa Falls by his wife, attorney Karen Mueller. According to NPR, the Muellers claimed drop boxes used to collect absentee ballots in the 2020 election were illegal, and the couple sought to have the legislature decide the election.