The effort to toss 221,000 votes in Milwaukee and Dane counties was rejected by a lower court Friday morning.
The Wisconsin Supreme Court announced late Friday afternoon it will take the unprecedented step to hear weekend oral arguments in outgoing President Donald Trump’s lawsuit that aims to throw out more than 221,000 votes in the state.
The decision gives new life to the president’s ongoing war on the Nov. 3 election just hours after it appeared his effort had been dealt a significant blow by a lower court’s rejection of the case.
A Racine County judge’s Friday morning decision had marked yet another defeat in court for Trump’s legal team, which has sought to overturn election results in various states, but the state Supreme Court’s late announcement casts a new cloud of uncertainty over Wisconsin’s already-certified election results.
Trump’s attorneys are trying to throw out vast swaths of votes in heavily Democratic Dane and Milwaukee counties. If successful, the erasure of almost a quarter-million votes would almost certainly reverse President-elect Joe Biden’s roughly 20,600-vote win in Wisconsin.
Trump originally filed the lawsuit last week with the state Supreme Court, but the court declined to hear the suit directly. Trump refiled in Dane and Milwaukee circuit courts with the hopes he could appeal a decision and get it back in front of the high court.
Retired Racine County Judge Stephen Simanek, who was assigned to the refiled lawsuit by conservative Supreme Court Chief Justice Pat Roggensack, rejected Trump’s lawsuit in a speedy Friday morning hearing in which he ruled from the bench.
“The petitioner appellants here have not demonstrated that an erroneous interpretation of Wisconsin early voting laws happened here,” Simanek said, rebuking Trump’s claims that hundreds of thousands of voters in Milwaukee and Dane counties illegally cast ballots.
Trump’s team indeed filed an appeal, and the Supreme Court scheduled oral arguments for noon Saturday.
Simanek cited the urgency with which any challenges to the election must be resolved. The federally mandated safe harbor deadline for states to resolve election disputes has already passed, and the Electoral College votes on Monday.
“Time is of the essence here. In less than 100 hours the electors need to vote,” Simanek said.
Trump’s legal team specifically hoped to toss: 170,140 in-person absentee ballots that did not have a separate written application (in fact, ballot envelopes count as applications for early in-person voting); 5,517 absentee ballots where clerks “cured” the envelopes (curing is a legal, common practice); 28,395 absentee ballots where voters claimed the “indefinitely confined” status (state law leaves it up to the voter to consider themselves indefinitely confined or not); and 17,271 absentee ballots returned to clerks in Madison at ballot collection events.
The president’s legal team alleged those ballots were improperly included in a recount in Dane and Milwaukee counties that failed to turn up any significant changes to the election.
The disputed practices were in line with the Wisconsin Elections Commission’s statewide guidance. All those practices, except for the Madison collection events, were seen throughout the entire state, not just Milwaukee and Dane counties.
“They have very cynically targeted the two most urban, nonwhite, and Democratic counties, even though voters in the other 70 counties voted using the exact same procedures plaintiffs claim are unlawful,” said John Devaney, a Biden attorney.
Trump attorney Jim Troupis, who would have thrown out his own vote if he won the case, falsely claimed the Elections Commission’s guidance was illegal.
“The idea that WEC supersedes the law or that WEC’s advice is an absolute defense is unsupported,” Troupis said of the board created by state Republicans in 2015.
Part of Biden, the Elections Commission, and the counties’ defense relied upon laches, the legal doctrine that says legal actions cannot be taken after an unreasonable delay. Trump’s campaign filed the lawsuit on Dec. 3, a month after the election.
“Plaintiffs’ delay here could not be more prejudicial to the 220,00-plus voters affected by this request for belief,” Devaney said. “The prejudice is outright disenfranchisement and a denial of their right to vote.”
Troupis claimed laches did not apply in this case and said there is no evidence the campaign waited too long to file the lawsuit. But the challenged practices have been in effect for multiple elections over the course of multiple years and were never the subject of any legal debate until now.
Friday morning’s hearing came a day after a judge heard arguments in a federal lawsuit from the Trump campaign that seeks to throw out the entire election, not just votes in Dane and Milwaukee counties. US Circuit Court Judge Brett Ludwig, a Trump appointee, seemed skeptical of Trump’s arguments and said he would issue a ruling within a couple days of the Thursday hearing.