It didn’t get much attention because it happened the very day the Electoral College formally awarded Joe Biden the presidency, but the Wisconsin Supreme Court only narrowly rejected a bid by the Trump campaign to throw out over 200,000 absentee ballots in the state’s two most Democratic counties. The 4-3 decision by what is generally considered the most polarized and politically driven high court in the country involved one conservative justice (Brian Hagedorn) joining three liberal colleagues in rejecting the Trump petition, mostly because it addressed alleged improper local election practices that were apparent long before balloting occurred. The legal doctrine of “laches” (undue delay in asserting a legal right or privilege) was emphasized in the majority opinion.
But in dissent, three conservative justices (in an opinion written by Chief Justice Patience Drake Roggensack) agreed with the Trump campaign’s claims that election officials in Dane and Milwaukee Counties violated state laws by instructing election clerks to correct small errors in the addresses listed for witnesses of absentee ballot signatures. They also objected to Dane County accepting absentee ballots at a preelection “Democracy in the Park” event in Madison, regarding it as a form of unauthorized early in-person voting. The dissenters did not address a third Trump claim that voters claiming “indefinitely confined” status due to the COVID-19 pandemic were illegally allowed to evade photo ID requirements.
As election-law expert Rick Hasen observed, the dissenters strangely did not tell us exactly what remedy they believe the Court should have given Trump. But if you assume they would have tossed out most of the ballots they considered improperly witnessed or collected, they would probably have flipped Wisconsin, which Biden carried by just over 20,000 votes, to Trump had they formed a majority. Since such a ruling would have triggered equal-protection concerns, as some of the practices used in Dane and Milwaukee Counties may have benefited Trump in Republican jurisdictions the suit did not address, it’s possible federal courts could have intervened to flip Wisconsin right back to Biden.
But arguably the Wisconsin Supreme Court came one vote from reducing the Democrat’s electoral-vote count from 306 to 296 just hours before electors cast their ballots. It wouldn’t have change the election results, but would have certainly cheered Trump’s battered and bruised legal team, and perhaps stiffened the president’s determination to fight his defeat until Inauguration Day, even though the local election practices in question in Wisconsin constituted at most technical irregularities, and not the “fraud” Team Trump keeps alleging.
The decision is a reminder of the significance of the Wisconsin Supreme Court election last April, in which a progressive candidate now on the court (Jill Karofsky, who was outspokenly critical of the Trump campaign’s petition during oral arguments, suggesting its focus on Dane and Milwaukee Counties “smacks of racism”) upset incumbent conservative Daniel Kelly. That outcome was widely attributed to backlash against voter-suppression efforts by Wisconsin Republicans. So perhaps in this latest decision, what goes around comes around.