Feehan v. Wis. Elections Comm'n

• Decision Date: 09 December 2020
• Docket Number: Case No. 20-cv-1771-pp
• Parties: William FEEHAN, Plaintiff, v. WISCONSIN ELECTIONS COMMISSION, Commissioner Ann S. Jacobs, Mark L. Thomsen, Julie M. Glancey, Commissioner Marge Bostelmann, Commissioner Dean Knudson, Robert F. Spindell, Jr. and Tony Evers, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

506 F.Supp.3d 596

William FEEHAN, Plaintiff,

v.WISCONSIN ELECTIONS COMMISSION, Commissioner Ann S. Jacobs, Mark L. Thomsen, Julie M. Glancey, Commissioner Marge Bostelmann, Commissioner Dean Knudson, Robert F. Spindell, Jr. and Tony Evers, Defendants.

Case No. 20-cv-1771-pp

United States District Court, E.D. Wisconsin.

Signed December 9, 2020

Daniel J. Eastman, Eastman Law, Mequon, WI, Michael D. Dean, Michael D. Dean LLC, Brookfield, WI, Brandon Johnson, Emily P. Newman, Julia Z. Haller, Sidney Powell, Sidney Powell PC, Dallas, TX, Howard Kleinhendler, New York, NY, L. Lin Wood, L. Lin Wood PC, Atlanta, GA, for Plaintiff.

Colin T. Roth, Jody J. Schmelzer, Sean Michael Murphy, Wisconsin Department of Justice Office of the Attorney General, Madison, WI, for Defendants Wisconsin Elections Commission, Commissioner Ann S. Jacobs, Mark L. Thomsen, Commissioner Marge Bostelmann, Julie M. Glancey, Commissioner Dean Knudson, Robert F. Spindell, Jr.

Davida Brook, Susman Godfrey LLP, Los Angeles, CA, Jeffrey A. Mandell, Rachel E. Snyder, Richard Manthe, Stafford Rosenbaum LLP, Madison, WI, Justin A. Nelson, Susman Godfrey LLP, Houston, TX, Paul M. Smith, Campaign Legal Center, Washington, DC, Stephen Morrissey, Susman Godfrey LLP, Seattle, WA, Stephen Shackelford, Jr., Susman Godfrey LLP, New York, NY, for Defendant Tony Evers.

ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS (DKT. NOS. 51, 53), DENYING AS MOOT PLAINTIFF'S AMENDED MOTION FOR INJUNCTIVE RELIEF (DKT. NO. 6) AND DISMISSING CASE

PAMELA PEPPER, Chief United States District Judge

At 8:24 a.m. on Tuesday, December 1, 2020—twenty-eight days after the November 3, 2020 general Presidential election, thirteen days after President Donald J. Trump petitioned for a recount in Milwaukee and Dane Counties and one day after the Wisconsin Elections Commission and the Governor certified that Joseph R. Biden and Kamala D. Harris had received the highest number of votes following that recount—two plaintiffs filed this lawsuit in federal court for the Eastern District of Wisconsin. Although state law governs the election process, the plaintiffs brought the suit in a federal court, asking that federal court to order state officials to decertify the election results that state officials had certified the day before, order the Governor not to transmit to the Electoral College the certified results he'd transmitted the day before and order the Governor to instead transmit election results that declared Donald Trump to be "the winner of this election."

The election that preceded this lawsuit was emotional and often divisive. The pleadings that have been filed over the past week are passionate and urgent. People have strong, deep feelings about the right to vote, the freedom and opportunity to vote and the value of their vote. They should. But the legal question at the heart of this case is simple. Federal courts have limited jurisdiction. Does a federal court have the jurisdiction and authority to grant the relief this lawsuit seeks? The answer is no.

Federal judges do not appoint the president in this country. One wonders why the plaintiffs came to federal court and asked a federal judge to do so. After a week of sometimes odd and often harried litigation, the court is no closer to answering the "why." But this federal court has no authority or jurisdiction to grant the relief the remaining plaintiff seeks. The court will dismiss the case.

I. Background

According to defendant the Wisconsin Elections Commission's November 18, 2020 canvass results, 3,297,352 Wisconsin residents voted in the November 3, 2020 general election for President. https://elections.wi.gov/sites/elections.wi.gov/files/Statewide% 20Results% 20All% 20Offices% 20% 28pre-Presidential% 20recount% 29.pdf. Of those, 49.45%—1,630,673—voted for Biden for President and Harris for Vice-President. Id. Biden and Harris received approximately 20,600 more votes than Donald J. Trump for President and Michael R. Pence for Vice-President. Id.

Under Wis. Stat. § 9.01(1)(a)(1), any candidate in an election where more than 4,000 votes were cast for the office the candidate seeks and who trails the leading candidate by no more than 1 percent of the total votes cast for that office may petition for a recount. On November 18, 2020, Donald J. Trump filed a recount petition seeking a recount of "all ballots in all wards in every City, Village, Town and other voting unit in Dane and Milwaukee Counties." https://elections.wi.gov/sites/elections.wi.gov/files/2020-11/WEC% 20-% 20Final% 20Recount% 20Order_0.pdf. The Wisconsin Elections Commission granted that petition and ordered a recount "using the ballot count method selected per Wis. Stat. § 5.90(1) unless otherwise ordered by a court per Wis. Stat. § 5.90(2)." Id. The WEC ordered the recount to be completed by 12:00 p.m. on December 1, 2020. Id.

The partial recount was completed on November 29, 2020. https://elections.wi.gov/elections-voting/recount. On November 30, 2020, the chair of the Wisconsin Elections Commission signed the statement of canvass certifying that Joseph R. Biden and Kamala D. Harris received the greatest number of votes and certified their electors. https://elections.wi.gov/sites/elections.wi.gov/files/2020-11/Jacobs% 20-% 20Signed% 20Canvass% 20for% 20President% 20-% 20Vice% 20President.pdf. The same day—November 30, 2020—Wisconsin Governor Tony Evers announced that he had signed the Certificate of Ascertainment for the electors for Biden and Harris. https://content.govdelivery.com/accounts/WIGOV/bulletins/2aef6ff. The web site for the National Archives contains the Certificate of Ascertainment signed by Evers on November 30, 2020, certifying that out of 3,298,041 votes cast, Biden and Harris and their electors received 1,630,866 votes, while Trump and Pence and their electors received 1,610,184 votes. https://www.archives.gov/files/electoral-college/2020/ascertainment-wisconsin.pdf.

On December 1, 2020, Donald J. Trump filed a petition for an original action in the Wisconsin Supreme Court. Trump v. Evers, Case No. 2020AP001971-OA (available at https://wscca.wicourts.gov). On December 3, 2020, the court denied leave to commence an original petition because under Wis. Stat. § 9.01(6), appeals from the board of canvassers or the Wisconsin Elections Commission must be filed in circuit court. Dkt. No. 59-7. The same day—December 3, 2020—Donald J. Trump filed lawsuits in Milwaukee and Dane Counties. Trump v. Biden, Case No. 2020CV007092 (Milwaukee County Circuit Court); Trump v. Biden, Case No. 2020CV002514 (Dane County Circuit Court) (both available at https://wcca.wicourts.gov). Those cases have been consolidated and are scheduled for hearing on December 10, 2020 at 1:30 (or for December 11, 2020 at 9:00 a.m. if the parties are litigating in another court).

Meanwhile, on December 2, 2020, Donald J. Trump filed suit in federal court for the Eastern District of Wisconsin, suing the defendants in this case and others. Trump v. Wisconsin Elections Commission, et al., Case No. 20-cv-1785-BHL (E.D. Wis.). There is an evidentiary hearing scheduled for December 10, 2020 at 9:00 a.m. by videoconference. Id. at Dkt. No. 45.

II. Procedural History of the Case

On December 1, 2020—the day after Governor Evers signed the Certificate of Ascertainment—William Feehan and Derrick Van Orden filed a complaint in the federal court for the Eastern District of Wisconsin. Dkt. No. 1. Feehan identified himself as a resident of La Crosse, Wisconsin, a registered voter and "a nominee of the Republican Party to be a Presidential Elector on behalf of the State of Wisconsin." Id. at ¶23. Van Orden was identified as a resident of Hager City, Wisconsin and the 2020 Republican nominee for Wisconsin's Third Congressional District Seat for the U.S. House of Representatives. Id. at ¶26. The complaint alleged that "Mr. Van Orden ‘lost’ by approximately 10,000 votes to the Democrat incumbent," and stated that "[b]ecause of the illegal voting irregularities as will be shown below, Mr. Van Orden seeks to have a new election ordered by this court in the Third District, with that election being conducted under strict adherence with the Wisconsin Election Code." Id. at ¶27.

The complaint alleged "massive election fraud, multiple violations of the Wisconsin Election Code, see e.g., Wis. Stat. §§ 5.03, et seq. , in addition to the Election and Electors Clauses and Equal Protection Clause of the U.S. Constitution" based on "dozens of eyewitnesses and the statistical anomalies and mathematical impossibilities detailed in the affidavits of expert witnesses." Dkt. No. 1 at ¶1. The plaintiffs alleged four causes of action: (1) violation of the Elections and Electors Clauses and 42 U.S.C. § 1983 ; (2) violation of the Equal Protection Clause of the Fourteenth Amendment, 42 U.S.C. § 1983 and the "invalid enactment of regulations & disparate treatment of absentee vs. mail-in ballots"; (3) denial of the Fourteenth Amendment due process right to vote and 42 U.S.C. § 1983 ; and (4) "wide-spread ballot fraud." Id. at ¶¶106-138. The plaintiffs asked for the following emergency relief:

1. An order directing Governor Evers and the Wisconsin Elections Commission to de-certify the election results:

2. An order enjoining Governor Evers from transmitting the currently certified election results [sic] the Electoral College;

3. An order requiring Governor Evers to transmit certified election results that state that President Donald Trump is the winner of the election;

4. An immediate emergency order to seize and impound all servers, software, voting machines, tabulators, printers, portable media, logs, ballot applications, ballot return envelopes, ballot images, paper ballots, and all "election materials" referenced in Wisconsin Statutes § 9.01(1)(b) 11 related to the November 3, 2020 Wisconsin election for forensic audit and inspection by the Plaintiffs;

5. An order that no votes received or tabulated by machines that were not certified as

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