Dusk settles over the White House
As courts continue to affirm President Trump's election defeat, dusk settles over the White House that he will be vacating on Jan. 20, 2021. (AP Photo/Patrick Semansky, Dec. 7, 2020)

Hagedorn joins progressives in telling the president he waited too long after the election was done to complain about the rules that govern it.

Barely an hour before the official start of voting by Wisconsin’s members of the Electoral College in one part of the state Capitol, the Wisconsin Supreme Court voted in another part of the building 4-3 Monday morning to reject a request from outgoing President Donald Trump to disqualify more than 221,000 ballots in heavily Democratic Milwaukee and Dane counties. 

Trump lost Wisconsin and its 10 electoral votes to President-elect Joe Biden by about 20,600 votes cast on Nov. 3 through a combination of in-person voting, early in-person voting, and absentee voting by mail. Trump was asking the court to strike down all of those types of ballots, but only the ones cast in the state’s two largest counties, which implies the president would accept two sets of rules for Wisconsin voters.

Swing Justice Brian Hagedorn, a conservative, joined the Supreme Court’s three liberal justices in Monday’s decision, based largely on a legal premise known as laches which expresses how someone who waits too long to file a complaint may no longer be able to ask a court for a remedy.

“The Campaign’s delay in raising these issues was unreasonable in the extreme,” read the majority opinion written by Hagedorn, “and the resulting prejudice to the election officials, other candidates, voters of the affected counties, and to voters statewide, is obvious and immense. Laches is more than appropriate here; the Campaign is not entitled to the relief it seeks.”

“The Campaign sat on its hands, waiting until after the election, despite the fact that this ‘application’ form [for absentee voting] was in place for over a decade,” Hagedorn continued. “To strike ballots cast in reliance on the guidance now, and to do so only in two counties, would violate every notion of equity that undergirds our electoral system.”

Earlier: Conservative Pens Scathing Takedown of Attempts to Toss Out WI Election Results

The court was hearing an appeal of a lawsuit Trump filed in state court. On Saturday, as arguments in that case were taking place, a separate lawsuit Trump had filed in federal court was rejected. That suit made the extraordinary request to throw out the entire Wiscnsin election and allow the Republican-led Legislature to pick electors. Trump appointee Judge Brett Ludwig of the federal Wisconsin Eastern District Court rejected the lawsuit two days after he heard arguments in the case.

In the state case decided Monday, 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.

On the matter of being considered indefinitely confined, the four justices were even harsher on Trump, saying his argument “has no basis in reason or law; it is wholly without merit.”

Writing for the three conservative justices in the minority, Chief Justice Pat Roggensack marched in rhetorical lockstep with Trump and his allies by saying there is doubt in the election result—”In the case now before us, a significant portion of the public does not believe that the November 3, 2020, presidential election was fairly conducted”—without acknowledging that the doubt is being sown by Trump and his allies rather than any proven instances of fraud. 

All that she, Justice Annette Zigler, and Justice Rebecca Bradley could do was claim election officials in the two counties “based their decisions on erroneous advice” on matters such as filling address information on absentee ballot envelopes, concluding that “errors in the certification of absentee ballots require discarding those ballots is consistent with our precedent.”

The three conservatives also appear to believe drop boxes should not be legal because they are not specifically mentioned in a state statute that says absentee ballots “shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.” 

Hagedorn acknowledges in a separate concurring opinion that some of the issues raised by Trump present a “valid election administration concern. WEC [Wisconsin Election Commission], other election officials, the legislature, and others may wish to examine the requirements of the statute and measure them against the guidance and practice currently in place to avoid future problems.”