A key conservative justice on the Wisconsin Supreme Court delivered a scathing rebuke of Republican efforts to overturn the state’s presidential contest Friday, rejecting a lawsuit that he said would have done irreversible damage to every future election.
It was the third time in two days that conservative Justice Brian Hagedorn had sided with the court’s liberals in a 4-3 ruling against Republicans, leaving President Donald Trump and his allies with fewer avenues in their efforts to undo Democratic President-elect Joe Biden’s Wisconsin victory.
Hagedorn let loose on the petition by a group called the “Wisconsin Voters Alliance,” which asked the court to reject the more than 3 million votes cast in November’s election, require the Legislature to choose its own presidential electors and require the governor to approve them.
Hagedorn said such a move would be without precedent in American history.
“One might expect that this solemn request would be paired with evidence,” he wrote. “Instead, the evidentiary support rests almost entirely on the unsworn expert report of a former campaign employee.”
Hagedorn said that what was being asked of the court was also dangerous.
“Something far more fundamental than the winner of Wisconsin’s electoral votes is implicated in this case,” Hagedorn wrote. “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.“
Hagedorn said that once the door was opened to judicial invalidation of presidential election results, it would be hard to close that door again.
“This is a dangerous path we are being asked to tread,” Hagedorn wrote. “The loss of public trust in our constitutional order resulting from the exercise of this kind of judicial power would be incalculable.”
Hagedorn said those bringing the lawsuit had “come nowhere close” to establishing the kind of case that would be needed to overturn an election.
“While the rough and tumble world of electoral politics may be the prism through which many view this litigation, it cannot be so for us,” Hagedorn wrote. “This petition does not merit further consideration by this court, much less grant us a license to invalidate every single vote cast in Wisconsin’s 2020 presidential election.”
Hagedorn’s opinion was joined by Justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky.
Chief Justice Patience Roggensack dissented, saying Hagedorn’s opinion had “the cart before the horse,” and that even if the court did not agree with the lawsuit, it should hear the case first.
“I dissent because I would grant the petition and address the people of Wisconsin’s concerns about whether (the Wisconsin Election Commission’s) conduct during the 2020 presidential election violated Wisconsin statutes,” Roggensack wrote. “It is critical that voting in Wisconsin elections not only be fair, but that the public also perceives voting as having been fairly conducted. The Wisconsin Supreme Court should not walk away from its constitutional obligation to the people of Wisconsin for a third time.”
Roggensack was joined in her dissent by Justices Annette Ziegler and Rebecca Bradley.
While their reasoning differed, the ideological split was the same as in two other election lawsuits dismissed by the court Thursday.
In one, filed by Trump’s campaign, Hagedorn ruled that Wisconsin law required recount lawsuits to begin in circuit court, a process the Trump campaign initiated Thursday night. That case may yet end up back before the Wisconsin Supreme Court.
In the other, filed by on behalf of Dean Mueller of Chippewa Falls by his wife, attorney Karen Mueller, the court dismissed the case on a similar 4-3 ruling without explanation.
Federal Judge: Trump Argument ‘Almost Strikes Me As Bizarre’
In another potential setback for Trump Friday, a federal judge hearing the president’s other Wisconsin lawsuit sent signals that he was, at the very least, skeptical of its arguments.
Trump’s federal lawsuit — heard in the U.S. District Court for the Eastern District of Wisconsin — asks the court to declare that the election was unconstitutional because around 50,000 ballots were cast using guidance from the Wisconsin Elections Commission that ran contrary to state law.
Similar to the case dismissed by the Wisconsin Supreme Court Friday, Trump’s federal case seeks to “remand” Wisconsin’s election to the state Legislature, allowing Republican lawmakers to choose their own presidential electors.
U.S. District Court Judge Brett Ludwig, who was nominated by Trump, pressed lawyers for Trump on that argument during a scheduling briefing before the court Friday.
“If that’s the case, why are they doing anything in this court?” asked Ludwig. “Why isn’t the plaintiff going to the Legislature?”
Trump attorney William Bock responded that the campaign needed the court to first declare that Wisconsin’s election was conducted in an unconstitutional manner.
“I have a very, very hard time seeing how this is justiciable,” Ludwig replied, adding that Trump’s legal argument “almost strikes me as bizarre.”
Ludwig scheduled a hearing in the federal lawsuit for Thursday, Dec. 10 at 9 a.m.
In addition to Trump’s federal lawsuit, final briefs are due Tuesday in another federal case filed by attorney Sidney Powell, who has filed similar lawsuits unsuccessfully in other states.
Trump’s State Case Revived
In a separate hearing Friday, Reserve Judge Stephen A. Simanek of Racine County heard from attorneys in Trump’s other lawsuit, which is the only case remaining in state court.
Trump’s state lawsuit was originally filed with the Wisconsin Supreme Court, then refiled in Dane and Milwaukee County circuit courts following Thursday’s ruling. Roggensack then consolidated the Dane and Milwaukee County cases and sent them both to the courtroom of Simanek, who retired from his full-time judgeship a decade ago.
Trump’s state lawsuit seeks to throw out more than 221,000 absentee ballots cast in Dane and Milwaukee counties. Trump’s campaign argues the ballots were cast using faulty guidance from the Wisconsin Elections Commission that was inconsistent with what was intended by the state Legislature.
If the lawsuit were to succeed, it would throw out every ballot cast in the counties — more than 170,000 in all — by people who voted in-person before Election Day.
Simanek scheduled a hearing for the case for Thursday, Dec. 10 at 1:30 p.m. but said he would delay that until Friday morning if the federal hearing runs long.
He didn’t want to delay the case further because presidential electors are scheduled to meet around the nation to finalize the election on Dec. 14.
“I hate to bump up against that,” Simanek said.
Simanek said he would rule from the bench at the conclusion of the hearing, which would likely send the case back to the Wisconsin Supreme Court.