Presidential Election Litigation, WEC Certification Strife Unfold

December 3, 2020

Every day there seems to be a new development surrounding the Presidential Election here in Wisconsin. Just when you think you are caught up on everything, another milestone is reached or a new lawsuit is filed. So to help us all keep things straight, we’ve brought together all the information and updates that you need in one place, here.

In the last few days, multiple lawsuits have been filed over the results of the Presidential vote in Wisconsin. Here is a summary of the lawsuits that have been filed to date.

On the morning of December 1, President Donald Trump and his legal team filed a lawsuit before the Wisconsin State Supreme Court. The lawsuit names Governor Tony Evers, Wisconsin Election Commission Chair Ann Jacobs, and various county officials as the plaintiffs in the lawsuit. The lawsuit alleges that four different types of ballots were cast illegally – absentee ballots without a proper written application, absentee ballots altered by clerks (Red Ink ballots), absentee ballots without photo id (Indefinitely Confined ballots) and absentee ballots collected by the City of Madison at the Democracy in the Park events.

According to the filing, there are “four cases with clear evidence of unlawfulness, such as illegally altering absentee ballot envelopes, counting ballots that had no required application, overlooking unlawful claims of indefinite confinement, and holding illegal voting events called Democracy in the Park. These unlawful actions affected no less than approximately 221,000 ballots out of over the three million ballots cast in Wisconsin.” The lawsuit states uncertified polling locations along with circumvented voter ID laws impacted the election results in a critical swing state.

On December 2, Governor Tony Evers filed a response to the Trump administration lawsuit. The response lists six arguments against the Trump case:

1) It is procedurally improper because the Trump team should have taken the case to a circuit court first

2) Wisconsin Election Commission guidance documents allow the contested activities, and the Executive Branch has the authority to use guidance documents

3) It is “highly fact-bound” and cannot be adjudicated without “extensive fact-finding” that trial courts normally do, not the State Supreme Court

4) “Laches” bars petitioners requested relief. Too much time has passed for the Supreme Court to rule in Trump’s favor, and if the Court did, people would “suffer” because of voter disenfranchisement and “winning candidates would be deprived of the result they rightfully obtained”

5) Petitioners (Trump Team) are not entitled to declaratory or injunctive relief

6) The requested relief would violate federal and state constitutions and laws and would disenfranchise voters by voiding Governor Evers’ election certification

The response from Governor Evers states that the “requested ‘relief’ is an affront to the voters of Dane and Milwaukee Counties–not coincidentally, the counties with the most urban residents and voters of color, who voted overwhelmingly for the Biden-Harris ticket. Such a blatantly discriminatory result would be an affront to our most cherished constitutional and democratic values.”

Wisconsin State Attorney General Josh Kaul tweeted that the Trump case “seeks to establish a two-tiered system for votes cast in the presidential election, with citizens from two of our counties subject to disenfranchisement under much stricter rules than citizens of the rest of the state.”

On December 3, the Wisconsin Supreme Court in a 4-3 decision declined to hear the December 1 Trump team lawsuit. Justice Brian Hagedorn concurred with the majority opinion. The response by the majority states the case must first run through the lower courts before being heard by the Supreme Court. In her dissent of the decision, Justice Rebecca Bradley states not taking the case “leaves an indelible stain on our most recent election.”

Last week, another lawsuit was filed regarding the legality of unmanned ballot boxes placed throughout the state. The plaintiff in the case, Dean Mueller, argues that uncertified ballot drop boxes may have led to increased participation in favor of a certain political party.

The suit states that “Neither [Wisconsin Election Commission] members nor county clerks had the legislative power and authority to create and to designate such drop boxes as ‘official’ places where ballots could be cast and received and counted under current Wisconsin law.”

Finally, The Wisconsin Voters Alliance filed a lawsuit against the Wisconsin Election Commission (WEC) for allowing outside interference from Facebook CEO Mark Zuckerberg and lax voter identification laws that impacted voter turnout.

According to the filing, Zuckerberg gifted the Center for Technology & Civic Life (CTCL) with $6,000,000 that was used to facilitate the use of absentee voting in “democratic strongholds” Racine, Kenosha, Green Bay, Madison and Milwaukee in violation of Wisconsin law. The cities apparently agreed to use the money from CTCL to hire additional personnel, increase salaries, encourage absentee voting, provide assistance to help voters comply with absentee requirements, utilize drop-boxes, deploy additional staff to expedite absentee ballots processing, expand in-person early voting and commit “to conducting the necessary voter outreach and education to promote absentee voting and encourage higher percentages of our electors to vote absentee.”

The lawsuit alleges that none of these requirements and activities are allowed under Wisconsin law.

An affidavit in support of the lawsuit from expert Matthew Braynard states that 45% of individuals who requested an absentee ballot were not indefinitely confined on Election Day. Braynard believes “that due to the lax controls on absentee voting in the November 3, 2020 election that the current unofficial results of that election include tens of thousands of individuals who were not eligible to vote or failed to record ballots from individuals that were.”

View the full affidavit here.

At the same time as these lawsuits were filed, the Wisconsin Elections Commission (WEC) and the Governor certified the presidential election results on November 30th. Republicans on the commission allege the certification was done illegally.

At the WEC meeting on December 1, Commissioner Dean Knudson asked for Chairwoman Ann Jacobs to resign as chair of the commission. Knudson claimed that Chairwoman Jacobs did not prepare the Presidential certification with all six members of the commission. Instead, Jacobs unilaterally wrote and delivered the letter of certification to the Governor. Knudson believes that by Jacobs acting alone, the certification is not valid. Jacobs said she will not resign as Commission Chairwoman and that Commissioner Knudson’s interpretation of state law on the issue is wrong.

Commissioner Bob Spindell agreed with Knudson, saying, by law, all members of the Commission were supposed to prepare the election certificates together, not the Chair or the WEC staff alone.

Knudson motioned for all further items on the agenda to be suspended until the issue is resolved. The motion failed in a deadlock 3-3 vote.

At this meeting, WEC was also given a brief on the required post-election audit of voting machines. The audit examined 183 units, 5% of machines statewide, which were randomly selected, including 28 Dominion units.

The audit found no programming issues that affected the November 3 election. In response to the preliminary audit report, WEC Commissioner Knudson says he has “complete confidence” in WIsconsin’s election equipment. He says there is no proof yet of problems with voting machines in Wisconsin, including Dominion systems, and that there is no evidence of Dominion software switching any votes in Wisconsin.

MacIver will continue to report on election news as it unfolds.