Hours before electors across the country will make President-elect Joe Biden’s victory official, the Supreme Court of Wisconsin’s majority torched the outgoing administration’s last-ditch attempt to overthrow the will of the people.
“Our laws allow the challenge flag to be thrown regarding various aspects of election administration,” conservative Justice Brian Hagedorn wrote in a 20-page majority opinion. “The challenges raised by the Campaign in this case, however, come long after the last play or even the last game; the Campaign is challenging the rulebook adopted before the season began. Election claims of this type must be brought expeditiously. The Campaign waited until after the election to raise selective challenges that could have been raised long before the election.”
Wisconsin’s formally awarded Biden and his soon-to-be Vice President Kamala Harris the electors that they won shortly after the ruling.
On Saturday, the high court’s liberal wing and a conservative justice joining them tipped their hands in a brutal hearing that dressed down outgoing President Donald Trump and Vice President Mike Pence’s lawsuit as racist and anti-democratic.
Justice Jill Karofsky, an ultramarathon runner who won a landslide election this year to her post, tore into the lame-duck administration’s attorney James Troupis for suing only the two Wisconsin counties where the most Black people live: Milwaukee and Dane.
“This lawsuit, Mr. Troupis, smacks of racism,” Karofsky declared.
She was not alone in that assessment, with Justice Rebecca Dallet pointing out that Trump glossed over the state’s other 72 counties to target exclusively the “most non-white, urban” areas.
As Dallet noted, the unequal treatment was all the more flagrant because the campaign had challenged the use of a form common throughout Wisconsin.
“You’re not asking us to throw out votes in any other counties that use that form,” she added.
Karofsky and Dallet joined together in a concurring opinion to emphasize the failure of Trump’s fraud claims.
“As acknowledged by the President’s counsel at oral argument, the President would have the people of this country believe that fraud took place in Wisconsin during the November 3 ,2020 election,” they noted. “Nothing could be further from the truth. 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 evidence does show that, despite a global pandemic, more than 3.2 million Wisconsinites performed their civic duty. More importantly as it relates to this lawsuit, these voters followed the rules that were in place at the time. To borrow Justice Hagedorn’s metaphor, Wisconsin voters complied with the election rulebook. No penalties were committed and the final score was the result of a free and fair election.”
Justice Ann Walsh Bradley joined the majority opinion and a separate concurrence by Hagedorn.
Most state and federal courts across the country have rejected dozens of lawsuits by Trump and his allies, with little qualification or dissent. Wisconsin’s Supreme Court is one of the few where the right flank appeared receptive to the extreme demands of Trump’s allies, rejecting the previous three by a 4-3 margin.
Even then, the dissenters appeared reluctant to subscribe to the extreme request to overturn an election.
One of the previously lawsuits brought by the Thomas More Society, a right-wing charity that called Rudy Giuliani a litigation “partner,” received a blistering rebuke for asking the court to declare the election “null,” a request that Justice Hagedorn called “a real stunner.”
“Such a move would appear to be unprecedented in American history,” Hagedorn observed in a Dec. 4 ruling. “One might expect that this solemn request would be paired with evidence of serious errors tied to a substantial and demonstrated set of illegal votes. Instead, the evidentiary support rests almost entirely on the unsworn expert report of a former campaign employee that offers statistical estimates based on call center samples and social media research.”
Wisconsin’s dissenting justices in that ruling conceded granting themselves license to topple elections are “scary thoughts,” but they would have let the case in the door anyway.
“We grant petitions to exercise our jurisdiction based on whether the legal issues presented are of state wide concern, not based on the remedies requested,” Chief Justice Patience Roggensack wrote earlier this month.
Roggensack was one of the three dissenters in today’s ruling.
Joining Roggensack, Justices Rebecca Grassl Bradley and Annette Kingsland Ziegler appeared to express an openness to overturning the will of the people of Milwaukee and Dane Counties—while purporting to speak in their names.
“The majority does not explain how this potential remedy prevents us from hearing the merits of this case,” Ziegler wrote in her separate dissent, joined by the other two dissenters.
One of Trump’s complaints about the election griped about forms issued by the Wisconsin Election Commission, including the 2016 election that he won. Trump never complained about those forms before, nor did he take any issue with any of Wisconsin’s other 72 counties that used them, which are not as diverse.
All of the court’s high court justices are white.
Wisconsin Attorney General Josh Kaul called today’s ruling a “repudiation of a sordid attempt to steal the authority to award our electoral votes away from the people of Wisconsin.”
“The flood in several states of post-election challenges that never had a chance to succeed on the legal merits is, however, major cause for concern,” Kaul wrote in a statement. “That this attempt to overturn the results of a free and fair election has failed so spectacularly and consistently is a testament to the durability of the safeguards of our liberty. But we must act to strengthen those safeguards to ensure that any future attempt to corrupt our democracy is also warded off.”
Attorneys for Trump and Biden did not respond to emails requesting comment.
[Image via Brendan Smialowski / AFP via Getty Images]
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