By Andrew C. McCarthy
Sunday, December 13, 2020
The most telling aspect of the Wisconsin federal district
court’s rejection
of another Trump campaign lawsuit on Saturday is so obvious it is easy to miss.
And no, it is not that the rejecting was done by a Trump-appointed judge, Brett
H. Ludwig, or that it was done on the merits.
After all that’s been said over the last six weeks, this
fleeting passage near the start of the court’s workmanlike, 23-page decision
and order should take our breath away (my highlighting):
With the Electoral College meeting
just days away, the Court declined to address the issues in piecemeal fashion
and instead provided plaintiff with an expedited hearing on the merits of his
claims. On the morning of the hearing, the parties reached agreement on a
stipulated set of facts and then presented arguments to the Court.
A “stipulated set of facts,” in this context, is an
agreement between the lawyers for the adversary parties about what testimony
witnesses would give, and/or what facts would be established, if the parties
went through the process of calling witnesses and offering tangible evidence at
a hearing or trial.
In a real controversy, in which one or both of the
parties are making hotly disputed factual claims, there are few if any
stipulations. For example, a defendant who vehemently denies that he committed
stock fraud may be willing to stipulate that 20,000 shares of XYZ Corp’s common
stock were sold on December 14; but other than that, the defendant will demand
that the adversary call the fact witnesses who claim he defrauded them so he
can cross-examine. He will call his own witnesses to show what really happened,
and they will be aggressively questioned, too.
Publicly, the Trump campaign has been claiming there was
extensive vote fraud and law-breaking. Specifically with respect to Wisconsin,
President Trump tweeted on November 28: “The Wisconsin recount is not about
finding mistakes in the count, it is about finding people who have voted
illegally . . . We have found many illegal votes. Stay tuned!” The campaign
further maintained that the recount it demanded would “show somewhere around
100,000 illegal ballots in the two counties that Biden carried” (i.e.,
Milwaukee and Dane).
This is in addition to the innumerable times the
president and his surrogates have asserted that they were being systematically
prevented from proving massive fraud and illegality. The courts and state
officials, we’ve been told, have invoked legal technicalities, such as the
supposed lack of standing to sue, in order to stop the campaign from calling
witnesses and introducing voluminous documentary evidence.
So what happened in Wisconsin?
Judge Ludwig denied the state’s claims that the campaign
lacked standing. Instead, he gave the campaign the hearing they asked for — the
opportunity to call witnesses and submit damning exhibits. Yet, when it got
down to brass tacks, the morning of the hearing, it turned out there was no
actual disagreement between the Trump team and Wisconsin officials about the
pertinent facts of the case. The president’s counsel basically said: Never
mind, we don’t need to present all our proof . . . we’ll just stipulate to all
the relevant facts and argue legal principles.
In the end, after all the heated rhetoric, what did they
tell the court the case was really about? Just three differences over the
manner in which the election was administered — to all of which, as Ludwig
pointed out, the campaign could have objected before the election if
these matters had actually been of great moment.
There was no there there. Despite telling the country for
weeks that this was the most rigged election in history, the campaign didn’t
think it was worth calling a single witness. Despite having the opportunity of
a hearing before a Trump appointee who was willing to give the campaign ample
opportunity to prove its case, the campaign said, “Never mind.”
The legal arguments were not much more weighty than the
vacant factual presentation.
The Trump team started out as audaciously on claimed
constitutional violations as it had been on public allegations of fraud. It
claimed Wisconsin officials had run roughshod over the Constitution’s Electors
Clause, Due Process Clause, Equal Protection Clause, and First Amendment — the
array of allegations they’ve made in other battleground states as well. When it
became clear, however, that the court was willing to entertain the president’s
case but would scrutinize it closely, the Trump team quickly dropped the First
Amendment and Due Process claims. In addition, as Ludwig recounts, the
president’s counsel “offer[ed] no clue of a coherent Equal Protection theory,”
and “offered neither evidence nor argument to support such a claim.”
So the challenge boiled down to this: Wisconsin had
allegedly flouted the Electors Clause, which empowers states legislatures to
prescribe the manner of conducting elections, by allowing bureaucrats to change
election law under the guise of applying it. The state was said to have done
this in three ways. First, it allowed election boards to correct errors and
omissions in regard to the addresses provided by witnesses vouching for absentee
ballots. Second, as the pandemic tightened its grip, election officials issued
guidance informing voters in the elderly and “at-risk” health categories — not
all voters — that they might qualify for absentee voting under the state’s
“indefinite confinement” exemption. Third, they authorized drop boxes for the
submission of ballots.
Ludwig rejected these claims on the merits. As a general
matter, he explained that the Constitution gives each state legislature power
to prescribe the manner of conducting an election; he concluded that the
Trump team was confounding this with the means by which this prescribed
manner is carried out.
In Wisconsin (as across the country), the manner of
conducting the election is by popular vote, which was done. The means of
conducting the popular election has some variations from county to county, but
that inevitability has never been of constitutional significance. Even if it
were, Wisconsin’s election bureaucracy was created by the state legislature
precisely to administer elections and provide procedural guidance for
conducting them. Ergo, the fact that the election commission may go beyond
the letter of statutes does not mean it is violating state law; it
is carrying out the mission state law created it to accomplish: complementing
(not contradicting) baseline statutory requirements with administrative
procedures.
As for the three specific complaints:
·
Ludwig noted that the practice of allowing
election officials to use available information to correct faulty witness-address
information began in 2016. That was when Trump won the state by close to the
20,000-vote margin he lost it by this time; and back then, just as this time
around, he made no objection to address-correction. The court found the
guidance, which apparently affected “at least some absentee ballots,” to be
consistent with state law, which disqualifies ballots if the entire address is
missing, but does not prohibit correcting flawed addresses.
·
The application of the “indefinite confinement”
exemption, which was used by 240,000 of the 3.3 million voters, was in harmony
with both state law permitting the election commission to issue guidance and
with a ruling by Wisconsin’s state supreme court.
·
In employing 500 drop boxes, the commission
relied on guidance from the U.S. Cybersecurity and Infrastructure Security
Agency of the Trump administration’s Department of Homeland Security.
In connection with each of these claims, Ludwig observed
that the doctrine of laches (sitting on one’s rights too long) could have been
applied because the campaign easily could have raised and litigated them
pre-election. Nevertheless, the court found there was no need to resort to
laches because the Trump complaints, at most, involved “disputed issues of
statutory construction” that did not involve “any significant departure from
the legislative scheme” for conducting elections.
The lack of a significant claim was especially noteworthy
because the campaign’s claims for relief were, Ludwig said, “extraordinary”
(emphasis in original). The Trump team was asking the court to declare that
50,000 ballots were “likely” tainted (a comedown from the 100,000 counsel
touted in public statements). More eye-poppingly, the campaign was asking the
court to invalidate the popular vote (i.e., disenfranchise 3.3 million voters)
and remand the case to the state legislature (GOP-controlled) to appoint
electors (i.e., to seat the Trump rather than Biden slate to cast the state’s
10 electoral votes) — even though state officials had already certified Biden’s
victory in the manner prescribed by state law.
As has been the case since Election Day, the mismatch
between the improprieties alleged and the remedy sought was vast, wholly apart
from the court’s rejection of the allegations.
Nor can it be ignored that this is not the first time the
campaign ducked an opportunity to prove its claims of a stolen election in
court. In Pennsylvania, just days before the date a federal judge had set aside
for a hearing on the Trump campaign’s complaint, the campaign dropped its fraud
charges and agreed that no hearing would be necessary. In Michigan, the
campaign dropped its lawsuit after a federal judge threatened to dismiss it for
failure
to prosecute — nearly a week after filing the case with great fanfare, the
campaign had still not served its complaint on the secretary of state.
It has become an article of faith among ardent Trump
followers that the election was stolen. The president continues to insist that
this is the case, and these flames were further fanned by 19
Republican-controlled state governments, along with 126 Republican members of
Congress, who joined the meritless Texas lawsuit, tossed out by the Supreme
Court on Friday. The rationalization behind that stunt was that the
president has been denied his day in court. But every time a court offers him
an opportunity to establish by proof what he is promoting by Twitter, Team
Trump folds. Why is that?
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