Hagedorn joins progressives in calling the case “a dangerous path we are being asked to tread.”
A lawsuit from a conservative group seeking to have the outcome of Wisconsin’s entire election thrown out was turned back late Friday by the Wisconsin Supreme Court, but only by a single vote because one of the four conservative justices joined progressives.
In doing so, Justice Brian Hagedorn wrote a majority opinion that not only eviscerated the specific case but fired a warning shot across the bow of groups becoming more brazen in their efforts to overturn the will of the voters.
“The relief being sought by the petitioners is the most dramatic invocation of judicial power I have ever seen,” Hagedorn said. “Judicial acquiescence to such entreaties built on so flimsy a foundation would do indelible damage to every future election.”
The lawsuit brought by a group calling itself the Wisconsin Voters Alliance had asked the state’s highest court to take their case directly—bypassing circuit and appeals courts—and stop Wisconsin from certifying its election results, invalidate all 3.2 million votes cast in the election, and allow the Republican-led state Legislature to override the popular vote to choose the state’s electors even though Democratic candidate Joe Biden defeated Trump, a Republican.
The case, filed by Erick Kaardal, a Republican lawyer from Minneapolis who represented rapper Kanye West during his failed attempt to get on Wisconsin’s presidential ballot, does not include any legitimate proof of widespread fraud. The only alleged evidence presented is a report authored by Matthew Braynard, a former Trump campaign staffer from Virginia, who claims he hired an unnamed call center to contact voters in Wisconsin. Without disclosing his data or naming any of these voters, he claims “a reasonable degree of scientific certainty” that there were up to 156,807 fraudulent votes cast in the state.
Three other conservative justices, Rebecca Bradley, Annette Ziegler, and Chief Justice Pat Roggensack wanted to take up the case for consideration.
What follows is a lightly edited excerpt of Hagedorn’s majority opinion, joined by progressive justices Ann Walsh Bradley, Rebecca Dallet, and Jill Karofsky.
“The Wisconsin Voters Alliance and a group of Wisconsin voters bring a petition for an original action raising a variety of questions about the operation of the November 3, 2020 presidential election. Some of these legal issues may, under other circumstances, be subject to further judicial consideration. But the real stunner here is the sought-after remedy: We are invited to invalidate the entire presidential election in Wisconsin by declaring it “null”—yes, the whole thing. And there’s more.
“We should, we are told, enjoin the Wisconsin Elections Commission from certifying the election so that Wisconsin’s presidential electors can be chosen by the Legislature instead, and then compel the Governor to certify those electors.
“At least no one can accuse the petitioners of timidity.
“Such a move would appear to be unprecedented in American history. 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.
“This petition falls far short of the kind of compelling evidence and legal support we would undoubtedly need to countenance the court-ordered disenfranchisement of every Wisconsin voter.
“I feel compelled to share a further observation. Something far more fundamental than the winner of Wisconsin’s electoral votes is implicated in this case.
“At stake, in some measure, is faith in our system of free and fair elections, a feature central to the enduring strength of our constitutional republic. It can be easy to blithely move on to the next case with a petition so obviously lacking, but this is sobering. The relief being sought by the petitioners is the most dramatic invocation of judicial power I have ever seen.
“Judicial acquiescence to such entreaties built on so flimsy a foundation would do indelible damage to every future election. Once the door is opened to judicial invalidation of presidential election results, it will be awfully hard to close that door again. This is a dangerous path we are being asked to tread.
“The loss of public trust in our constitutional order resulting from the exercise of this kind of judicial power would be incalculable.”
Hours earlier, Trump’s federal and state lawsuits seeking to throw out more than 200,000 legally cast ballots in Milwaukee and Dane counties were dealt a potentially crippling blow when both judges delayed further action until next Thursday, two days after a deadline for states to resolve any legal challenges so that the Electoral College can meet on Dec. 14 to formally elect the next president.