Serial loser of election litigation and U.S. President Donald Trump has racked up yet another loss after a long string of losing election-related lawsuits. This time, a panel of three judges on the 7th Circuit Court of Appeals—all of whom were appointed by Republican presidents—affirmed the dismissal of a lawsuit Trump filed after losing the popular vote and, thus, the electoral college tally in the State of Wisconsin. Trump previously lost at the district court level on the merits, one of his own appointees famously ruled twelve days ago.
Senior Circuit Judge Joel Flaum, a Reagan appointee, joined judges Ilana Rovner (a George H. W. Bush appointee) and Michael Y. Scudder (a Trump appointee) to affirm the district court’s tossing of the suit on two grounds. In essence, the judges unanimously ruled that Wisconsin’s election was conducted correctly and that Trump waited too long to complain about the procedures employed.
“We agree that Wisconsin lawfully appointed its electors in the manner directed by its Legislature and add that the President’s claim also fails because of the unreasonable delay that accompanied the challenges the President now wishes to advance against Wisconsin’s election procedures,” the opinion states.
The opinion points out that Trump filed suit two days after Wisconsin’s governor certified the results of his state’s election in favor of Joe Biden and transmitted the certification to the National Archives.
Trump’s complaint was rooted in the Electors Clause of the U.S. Constitution. That clause allows each state’s legislature to choose how to appoint presidential electors. The 7th Circuit rubbished Trump’s moaning and groaning about how the legislature delegated the specifics to various state officials. Trump’s lawyers argued those officials overstepped the authority granted to them and conducted an out-of-control election.
Wisconsin has long chosen to conduct its election by popular vote, the 7th Circuit tidily pointed out in its 11-page opinion (some internal punctuation omitted):
To implement the obligation imposed by the Electors Clause, Wisconsin’s Legislature has directed that the State’s electors be appointed “by general ballot at the general election for choosing the president and vice president of the United States.” Wis. Stat. § 8.25(1). It has further assigned “responsibility for the administration of … laws relating to elections and election campaigns” to the [Wisconsin Elections] Commission. Id. § 5.05(1). Municipalities run the election, and each municipality’s own clerk “has charge and supervision of elections and registration in the municipality.” Id. § 7.15(1).
Trump’s legal team tried to argue that the Wisconsin Elections Commission issued an over-broad interpretation of a legal loophole which allowed voters to cast absentee ballots “without presenting a photo identification” if they were “indefinitely confined.” That phrase, the Commission decided, pertained to the COVID-19 pandemic, and that interpretation allowed more people in America’s Dairyland to vote without having to comply with Wisconsin’s voter ID law.
Trump’s lawyers also complained of the possible effects of unmanned ballot drop boxes and of procedures dating back to 2016 which allowed municipal clerks to correct witness addresses on absentee ballot certificates.
None of these amounted to a constitutional violation, the district court determined. Per the 7th Circuit’s summary of the lower court’s decision-making:
Even if the Electors Clause was read more broadly to address the “Manner” in which Wisconsin conducted the election, the district court determined that the Legislature had authorized the Commission to issue the guidance now challenged by the President. None of that guidance, the district court reasoned, reflected such a deviation from the Wisconsin Legislature’s directives as to violate the Electors Clause.
After determining (1) that Trump had standing to sue because he suffered a “concrete and particularized” injury which “affects him in a personal and individual way” (some internal punctuation removed); (2) that judges could in theory order the legislature to present a new slate of electors, and (3) that Trump presented a valid federal question, the 7th Circuit agreed with the lower district court:
On the merits, the district court was right to enter judgment for the defendants. We reach this conclusion in no small part because of the President’s delay in bringing the challenges to Wisconsin law that provide the foundation for the alleged constitutional violation. Even apart from the delay, the claims fail under the Electors Clause.
Under 7th Circuit precedent dating back to 1986, courts “must consider whether the plaintiffs filed a timely pre-election request for relief” before “contemplat[ing] a judgment that would void election results.” It’s a version of the doctrine of laches, the appellate judges said, and it applies here:
The President had a full opportunity before the election to press the very challenges to Wisconsin law underlying his present claims. Having foregone that opportunity, he cannot now—after the election results have been certified as final— seek to bring those challenges. All of this is especially so given that the Commission announced well in advance of the election the guidance he now challenges. Indeed, the witness- address guidance came four years ago, before the 2016 election. The Commission issued its guidance on indefinitely con- fined voters in March 2020 and endorsed the use of drop boxes in August.
Allowing the President to raise his arguments, at this late date, after Wisconsin has tallied the votes and certified the election outcome, would impose unquestionable harm on the defendants, and the State’s voters, many of whom cast ballots in reliance on the guidance, procedures, and practices that the President challenges here. The President’s delay alone is enough to warrant affirming the district court’s judgment.
The 7th Circuit ruled that while the text of the Electors Clause “seems to point to at least two constructions,” Trump failed to state a claim under Federal Rule of Civil Procedure 12(b)(6). To reach that conclusion, the judges quoted a concurring opinion by then-Chief Justice William Rehnquist in Bush v. Gore. Here’s their rationale (internal citations and punctuation omitted):
Rehnquist suggested that the proper inquiry under the Electors Clause is to ask whether a state conducted the election in a manner substantially consistent with the “legislative scheme” for appointing electors. We would not go further and ask, for example, whether Wisconsin’s officials interpreted perfectly “isolated sections” of the elections code.
The 7th Circuit said that this broad-brush approach to cases involving state elections procedures ended with a logical conclusion that Wisconsin’s officials were within their delegated authority when they did what they did in the 2020 election cycle—at least from a federal constitutional perspective. The circuit judges said any closer examination of Wisconsin’s state laws would need to be litigated in state courts. And, in this case, the 7th Circuit explicitly noted that such a review already occurred. Trump lost his 2020 election litigation in the Wisconsin Supreme Court by one vote on the court after challenger Jill Karofsky defeated incumbent conservative Justice Daniel Kelly. Kelly lost his seat on the state’s highest court after an endorsement from Trump himself. Karofsky, who took over, was outspoken about voter disenfranchisement during oral arguments when the state’s high court took up Trump’s election case.
[Photo by Doug Mills/Pool/Getty Images]
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