In a pair of stinging rebukes, one from a conservative Wisconsin Supreme Court justice and the other from a federal judge President Donald Trump appointed, two courts Friday balked at efforts by Trump and his supporters to toss out the results of the presidential election in the state and have the Legislature decide the winner.
Joined by the state Supreme Court’s three liberal-backed justices, conservative-backed Justice Brian Hagedorn called a request to have the court invalidate the November election “unprecedented in American history” and “the most dramatic invocation of judicial power I have ever seen.”
The court rejected the request 4-3.
“Judicial acquiescence to such entreaties built on so flimsy a foundation would do indelible damage to every future election,” Hagedorn wrote for the majority. “Once the door is opened to judicial invalidation of presidential election results, it will be awfully hard to close that door again. This is a dangerous path we are being asked to tread. The loss of public trust in our constitutional order resulting from the exercise of this kind of judicial power would be incalculable.”
The other three conservative-backed justices dissented, arguing the court should “address the people of Wisconsin’s concerns about whether the (Wisconsin Elections Commission’s) conduct during the 2020 presidential election violated Wisconsin statutes.”
In the federal case, a judge hearing a separate lawsuit seeking to overturn Democratic President-elect Joe Biden’s win in Wisconsin said Trump’s request to “remand” the case to the GOP-controlled Legislature to pick new electors was “bizarre.”
Hearings on both Trump campaign lawsuits were scheduled for Thursday, Dec. 10, with the judges noting the importance of resolving the legal battles before the Electoral College meets on Dec. 14.
Trump, who argues that hundreds of thousands of absentee ballots cast in accordance with state guidelines were illegal, wants a judge to give the Republican-controlled Legislature the power to determine who won the election.
“It’s a request for pretty remarkable declaratory relief,” said U.S. District Judge Brett Ludwig during a conference call to set deadlines and a hearing date. Ludwig, who said it was “an unusual case, obviously,” also cast doubt on whether a federal court should be considering it at all.
“I have a very, very hard time seeing how this is justiciable in the federal court,” said Ludwig, a Trump appointee. “The request to remand this case to the Legislature almost strikes me as bizarre.”
In the state Supreme Court case, a conservative nonprofit, the Wisconsin Voters Alliance, had asked the court to invalidate the election and have the Legislature pick new Electoral College electors.
“At least no one can accuse the petitioners of timidity,” Hagedorn wrote, adding that the petition contained disputed facts that needed to be sorted out by a lower court first. Hagedorn was joined in the opinion by liberal-backed justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky.
In their dissent, Chief Justice Patience Roggensack and Justices Annette Ziegler and Rebecca Bradley, all conservative-backed, said the court was acting too hastily.
“We grant petitions to exercise our jurisdiction based on whether the legal issues presented are of statewide concern, not based on the remedies requested,” they wrote.
In the hearing on the federal case Friday, Ludwig questioned why Trump wasn’t going directly to the Legislature if he wanted lawmakers to get involved with naming electors. Bill Bock, the Trump campaign attorney in the federal lawsuit, said Trump needed the court to rule that the election was “invalid” so the Legislature could get involved. He also said that the term “remand,” which is typically used to describe when one court sends a case to a lower court, was “inartful.”
Republican Assembly Majority Leader Jim Steineke cast serious doubt during the week on whether the Legislature might change the state’s electors from Biden to Trump backers. Steineke tweeted a clip of actor Dana Carvey playing President George H.W. Bush saying, “Not gonna do it.”
Trump has lost multiple lawsuits in other battleground states as part of a longshot effort to overturn Biden’s victory. Even if he were to prevail in Wisconsin, the state’s 10 Electoral College votes would not be enough to hand him reelection.
Ludwig scheduled a daylong online hearing in Trump’s federal lawsuit for Thursday.
Bock urged the judge to expedite the case, noting that the Electoral College members were voting on Dec. 14. Ludwig said he was sensitive to the time concerns, but that Trump could have raised the issues in November.
“There’s a little bit of the time crunch being created by the plaintiff,” Ludwig said.