Wisconsin Supreme Court’s weak punt on Trump lawsuit

Empower Wisconsin | Dec. 8, 2020

By Andrew McCarthy, National Review

It is being widely reported that the Trump campaign lost its lawsuit in the Wisconsin supreme court on Thursday. That is not what happened. By a 4–3 vote, and to the consternation of the dissenting judges, the majority claimed in a curt opinion that it could not entertain the case at this point for two reasons, one of which seems weak, and the other, a dodge.

Moreover, there appears just on the face of the opinions to be significant force to the campaign’s claims of impropriety. To be clear, though, this is not a fraud case.

The campaign is alleging that Wisconsin election officials did not comply with state law in administering the voting. It does not appear to be claiming that Trump votes were switched to Biden votes. Nor is it contending that voters who, with the approval of election officials, cast ballots outside the parameters set by state law would have voted for a different candidate if the ballots had instead been submitted in compliance. There is, therefore, no way the court would grant the remedy the campaign seeks; namely, the invalidation of over 200,000 ballots in heavily Democratic Milwaukee and Dane Counties.

Wisconsin has already certified that President-elect Biden won Wisconsin by about 20,000 votes.

The state supreme court majority claims that it cannot properly consider the campaign’s lawsuit. Principally, it reasons that it lacks jurisdiction over the case due to a state statute that makes a civil action filed in the circuit court — i.e., a court inferior to the state supreme court — the “exclusive judicial remedy” for claims of election-law violations.

Yet, it is elementary that a statute cannot override a constitution. If the state supreme court has jurisdiction under the Wisconsin constitution, that jurisdiction cannot be vitiated by a statute purporting to vest it exclusively in the circuit court. In her dissent, the court’s chief justice, Patience Drake Roggensack, argues that the state constitution (in art. VII, sec. 3(2)) explicitly gives the court the power to hear original actions in addition to exercising appellate jurisdiction, and she also says case law supports that conclusion.

Perhaps mindful that the statutory argument is dubious, state election officials also urge an alternative basis for the court to demur: The state and the Trump campaign do not agree on all the facts; consequently, to decide the case, a court will have to do fact-finding. The supreme court, the state posits, is principally an appellate tribunal that does not do fact-finding — that is for the lower courts. Ergo, the case must be referred to the circuit court, which can conduct whatever hearings are necessary and render a decision in the case, after which the Trump campaign, if it loses, can appeal to the supreme court.

The majority was persuaded by this argument, but the judges are just stalling to run out the clock. If the supreme court has original jurisdiction, as the state constitution says it does, it can hear matters before inferior courts do. And, as Chief Justice Roggensack explained, the court could have accepted the case, referred any fact-finding to the circuit court for prompt resolution, and then decided it without waiting for the circuit court to rule. By telling the campaign to go file its complaint in the circuit court, the majority well knew that it was guaranteeing that, even if the campaign has meritorious claims, the state’s highest court will not be able to render a decision before the issues are moot. The state’s electoral votes will already have been cast — that happens in less than a week.