Trump v. Biden

• Decision Date: 14 December 2020
• Docket Number: No. 2020AP2038,2020AP2038
• Citation: 394 Wis.2d 629,2020 WI 91,951 N.W.2d 568
• Parties: Donald J. TRUMP, Michael R. Pence and Donald J. Trump for President, Inc., Plaintiffs-Appellants, v. Joseph R. BIDEN, Kamala D. Harris, Milwaukee County Clerk c/o George L. Christenson, Milwaukee County Board of Canvassers c/o Tim Posnanski, Wisconsin Elections Commission, Ann S. Jacobs, Dane County Clerk c/o Scott McDonell and Dane County Board of Canvassers c/o Alan Arnsten, Defendants-Respondents.
• Court: Wisconsin Supreme Court

394 Wis.2d 629

951 N.W.2d 568

2020 WI 91

Donald J. TRUMP, Michael R. Pence and Donald J. Trump for President, Inc., Plaintiffs-Appellants,

v.Joseph R. BIDEN, Kamala D. Harris, Milwaukee County Clerk c/o George L. Christenson, Milwaukee County Board of Canvassers c/o Tim Posnanski, Wisconsin Elections Commission, Ann S. Jacobs, Dane County Clerk c/o Scott McDonell and Dane County Board of Canvassers c/o Alan Arnsten, Defendants-Respondents.

No. 2020AP2038

Supreme Court of Wisconsin.

Oral Argument: December 12, 2020

Opinion Filed: December 14, 2020

For the plaintiffs-appellants, a brief was filed by James R. Troupis and Troupis Law Office, Cross Plains, and R. George Burnett and Conway, Olejniczak & Jerry S.C., Green Bay. Oral argument presented by James R. Troupis.

For the defendants-respondents Joseph R. Biden and Kamala D. Harris, a brief was filed by Matthew W. O'Neill and Fox, O'Neill & Shannon, S.C., Milwaukee, Charles G. Curtis, Jr., Michelle M. Umberger, Will M. Conley and Perkins Coie LLP, Madison, and John M. Devaney (pro hac vice) and Perkins Coie LLP, Washington, D.C. Oral argument was presented by John M. Devaney.

For the defendants-respondents Wisconsin Elections Commission and Ann S. Jacobs, oral argument was presented by assistant attorney general Colin T. Roth.

HAGEDORN, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined. DALLET and KAROFSKY, JJ., filed a concurring opinion. HAGEDORN, J., filed a concurring opinion, in which ANN WALSH BRADLEY, J., joined. ROGGENSACK, C.J., filed a dissenting opinion, in which ZIEGLER and REBECCA GRASSL BRADLEY, JJ., joined. ZIEGLER, J., filed a dissenting opinion, in which ROGGENSACK, C.J., and REBECCA GRASSL BRADLEY, J., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which ROGGENSACK, C.J., and ZIEGLER, J., joined.

BRIAN HAGEDORN, J.

¶1 In the 2020 presidential election, the initial Wisconsin county canvasses showed that Wisconsin voters selected Joseph R. Biden and Kamala D. Harris as the recipients of Wisconsin's electoral college votes. The petitioners¹ (collectively, the "Campaign") bring an action under Wis. Stat. § 9.01 (2017-18)² seeking to invalidate a sufficient number of Wisconsin ballots to change Wisconsin's certified election results. Specifically, the Campaign seeks to invalidate the ballots—either directly or through a drawdown—of more than 220,000 Wisconsin voters in Dane and Milwaukee Counties.

¶2 The Campaign focuses its objections on four different categories of ballots—each applying only to voters in Dane County and Milwaukee County. First, it seeks to strike all ballots cast by voters who claimed indefinitely confined status since March 25, 2020. Second, it argues that a form used for in-person absentee voting is not a "written application" and therefore all in-person absentee ballots should be struck. Third, it maintains that municipal officials improperly added witness information on absentee ballot certifications, and that these ballots are therefore invalid. Finally, the Campaign asserts that all ballots collected at "Democracy in the Park," two City of Madison events in late September and early October, were illegally cast.

¶3 We conclude the Campaign is not entitled to the relief it seeks. The challenge to the indefinitely confined voter ballots is meritless on its face, and the other three categories of ballots challenged fail under the doctrine of laches.

I. BACKGROUND

¶4 After all votes were counted and canvassing was completed for the 2020 presidential election contest, the results showed that Vice President Biden and Senator Harris won Wisconsin by 20,427 votes. The Campaign sought a recount in two of Wisconsin's 72 counties—Milwaukee and Dane. The Milwaukee County Elections Commission and the Dane County Board of Canvassers conducted the recount and certified the results. The recount increased the margin of victory for Vice President Biden and Senator Harris to 20,682 votes.

¶5 The Campaign appealed those decisions in a consolidated appeal to the circuit court under Wis. Stat. § 9.01(6)(a), naming Vice President Biden, Senator Harris, the Wisconsin Elections Commission (WEC), and several election officials as respondents.³ The circuit court⁴ affirmed the determinations of the Dane County Board of Canvassers and the Milwaukee County Elections Commission in full. The Campaign appealed and filed a petition for bypass, which we granted.

II. DISCUSSION

¶6 The Campaign asks this court to reverse the determinations of the Dane County Board of Canvassers and the Milwaukee County Elections Commission with respect to four categories of ballots it argues were unlawfully cast.⁵ The respondents argue that all ballots were cast in compliance with the law, or at least that the Campaign has not shown otherwise. They further maintain that a multitude of legal doctrines—including laches, equitable estoppel, unclean hands, due process, and equal protection—bar the Campaign from receiving its requested relief. We agree that the challenge to the indefinitely confined voter ballots is without merit, and that laches bars the relief the Campaign seeks on the three remaining categories of challenged ballots.

A. Indefinitely Confined Voters

¶7 Wisconsin allows voters to declare themselves indefinitely confined, provided they meet the statutory requirements. See Wis. Stat. § 6.86(2)(a).⁶ These individuals are not required to provide photo identification to obtain an absentee ballot. Id. On March 25, 2020, the Dane and Milwaukee County Clerks issued guidance on Facebook suggesting all voters could declare themselves indefinitely confined because of the pandemic and the governor's then-existing Safer-at-Home Order. This court unanimously deemed that advice incorrect on March 31, 2020, and we noted that "the WEC guidance ... provides the clarification on the purpose and proper use of the indefinitely confined status that is required at this time." The county clerks immediately updated their advice in accordance with our decision.

¶8 The Campaign does not challenge the ballots of individual voters. Rather, the Campaign argues that all voters claiming indefinitely confined status since the date of the erroneous Facebook advice should have their votes invalidated, whether they are actually indefinitely confined or not. Although the number of individuals claiming indefinitely confined status has increased throughout the state, the Campaign asks us to apply this blanket invalidation of indefinitely confined voters only to ballots cast in Dane and Milwaukee Counties, a total exceeding 28,000 votes. The Campaign's request to strike indefinitely confined voters in Dane and Milwaukee Counties as a class without regard to whether any individual voter was in fact indefinitely confined has no basis in reason or law; it is wholly without merit.

B. Laches

¶9 Three additional categories of ballots are challenged by the Campaign. In Milwaukee and Dane Counties, the Campaign asserts all in-person absentee votes were cast unlawfully without an application, and that all absentee ballots with certifications containing witness address information added by the municipal clerks were improperly counted. Additionally, the Campaign challenges all ballots returned at the City of Madison's "Democracy in the Park" events.

¶10 All three of these challenges fail under the longstanding and well-settled doctrine of laches. "Laches is founded on the notion that equity aids the vigilant, and not those who sleep on their rights to the detriment of the opposing party." State ex rel. Wren v. Richardson, 2019 WI 110, ¶14, 389 Wis. 2d 516, 936 N.W.2d 587. Application of laches is within the court's discretion upon a showing by the party raising the claim of unreasonable delay, lack of knowledge the claim would be raised, and prejudice. Id., ¶15.

¶11 For obvious reasons, laches has particular import in the election context. As one noted treatise explains:

Extreme diligence and promptness are required in election-related matters, particularly where actionable election practices are discovered prior to the election. Therefore, laches is available in election challenges. In fact, in election contests, a court especially considers the application of laches. Such doctrine is applied because the efficient use of public resources demands that a court not allow persons to gamble on the outcome of an election contest and then challenge it when dissatisfied with the results, especially when the same challenge could have been made before the public is put through the time and expense of the entire election process. Thus if a party seeking extraordinary relief in an election-related matter fails to exercise the requisite diligence, laches will bar the action.

29 C.J.S. Elections § 459 (2020) (footnotes omitted).

¶12 Although it disagrees the elements were satisfied here, the Campaign does not dispute the proposition that laches may bar an untimely election challenge. This principle appears to be recognized and applied universally. See, e.g., Jones v. Markiewicz-Qualkinbush, 842 F.3d 1053, 1060–61 (7th Cir. 2016) ("The obligation to seek injunctive relief in a timely manner in the election context is hardly a new concept."). ⁷

This case may be a paradigmatic example of why. The relevant election officials, as well as Vice President Biden and Senator Harris, had no knowledge a claim to these broad categories of challenges would occur. The Campaign's delay in raising these issues was unreasonable in the extreme, and the resulting prejudice to the election officials, other candidates, voters of the affected counties, and to voters statewide, is obvious and immense. Laches is more than appropriate here; the Campaign is not entitled to the relief it seeks.

1. Unreasonable Delay

¶13 First, the respondents must prove that the Campaign unreasonably delayed in bringing the challenge. What constitutes an unreasonable delay varies and "depends on the...