Explained: Two Lawsuits Seek to Nullify Wisconsin’s Election

What you need to know about two lawsuits—and a likely third one from the Trump campaign—that want to invalidate your legally cast vote.

President-elect Joe Biden won Wisconsin by about 20,500 votes, a recount of Milwaukee and Dane counties confirmed that margin, and the Wisconsin Elections Commission has repeatedly said it found no evidence of widespread fraud. 

All of those facts haven’t stopped two lawsuits currently up for consideration at the Wisconsin Supreme Court from coming to the same baseless conclusion: The Nov. 3 presidential election must be declared null and void in Wisconsin. 

The conservative-led state Supreme Court has not yet agreed to take up either suit, but the lawsuits represent alarming efforts to disenfranchise the 3.2 million Wisconsinites who voted in the election. The suits come as top Republicans in the state and nation have sought to cast doubt on the results and subvert the election, even after President Donald Trump’s administration formally began the transition process. 

The first lawsuit, filed last week against the Elections Commission and Gov. Tony Evers, by the conservative Wisconsin Voters Alliance, claims without any specific evidence that as many as 156,807 “illegal votes” were counted in Wisconsin. 

The only “proof” provided was a report from a former Trump campaign staffer, Matthew Braynard, who said he hired a call center—which he did not name—to contact Wisconsinites and prove fraud in the election. Braynard claimed the results from the call center gave him “a reasonable degree of scientific certainty” that there was widespread voter fraud. 

However, Braynard’s summary of the results does not identify any individuals who allegedly voted illegally. The results are also based partly on people who didn’t cast a vote at all.

The plaintiffs argue that the fraud they allege—of which  they have provided no proof—is proof the election must be thrown out and that the Republican-led Legislature should be allowed to pick the state’s presidential electors. 

“The extreme nature of such a request cannot be overstated,” Evers’ legal team wrote in a response filed Friday evening.  “The Petition amounts to a brazen attack on democracy itself.”

The Elections Commission’s response, penned by Attorney General Josh Kaul’s office, called the Voters Alliance’s lawsuit “borderline frivolous” and said Braynard’s report is “riddled with obvious defects.”

“The fundamentally undemocratic and unprecedented nature of Petitioners’ request to invalidate Wisconsin’s general election results for President cannot be overstated,” Kaul’s office wrote.

Rep. Joe Sanfelippo (R-New Berlin) earlier this month suggested allowing the Legislature to appoint Trump-loyalist electors, and Trump’s campaign also reportedly planned as much. However, it is not possible in Wisconsin because state law gives the power of elector selection to political parties, not lawmakers.

Assembly Majority Leader Jim Steineke (R-Kaukauna) on Sunday tweeted his opposition to the idea of the Legislature stepping in to overrule the vote.

Over the Thanksgiving holiday, the City of Milwaukee; Wisconsin NAACP; nonprofit Center for Tech and Civic Life; and a handful of Republicans including former New Jersey Gov. Christine Todd Whitman, and former Missouri Sen. John Danforth filed briefs opposing the Voters Alliance’s petition. 

The second lawsuit, filed by Chippewa Falls resident Dean Mueller, argues the numerous absentee ballot drop boxes in communities across the state were illegal. The Elections Commission in August sent guidance to all local clerks encouraging the use of drop boxes, and many communities followed suit; the lawsuit claims there were “over 500” drop boxes across the state.

Many voters used drop boxes because they feared contracting COVID-19 and did not trust the mail service, which Trump and Postmaster Louis DeJoy intentionally slowed down ahead of the election. However, it is unclear exactly how many ballots were placed in drop boxes.

Mueller’s attorney, Karen Mueller (who is Dean Mueller’s wife, according to Urban Milwaukee and Wisconsin Public Radio), does not cite any statute that would prohibit ballot drop boxes. Instead, Karen Mueller argues that any ballot returned to clerks in a drop box was illegal simply because there is no statute explicitly allowing drop boxes. She claims the Elections Commission effectively wrote a new law—something reserved for the Legislature—in issuing its guidance.

The lawsuit asks the Supreme Court to nullify the election results and give the power of either holding a new election or appointing electors to the Republican-led Legislature. The Elections Commission has not yet filed a response.

Another suit is likely coming down the pike from Trump himself. The recount of Milwaukee and Dane counties was a transparent effort to tee up a lawsuit to nullify the election or toss out hundreds of thousands, if not millions, of votes. 

“The Wisconsin recount is not about finding mistakes in the count, it is about finding people who have voted illegally, and that case will be brought after the recount is over, on Monday or Tuesday,” Trump tweeted Saturday.

Trump further claimed that “we have found many illegal votes,” a blatant lie. The top election officials in Milwaukee and Dane counties said the recounts uncovered no fraud.

During the recounts, Trump’s team challenged every single in-person absentee vote, every voter who claimed the “indefinitely confined” status, and a vast majority of mailed ballots cast in Milwaukee and Dane counties. Should it bring a legal challenge to the state Supreme Court, the Trump campaign is expected to raise those objections to each vote in that category statewide.