Trump 7th Cir 20-3414

Case: 20-3414 Document: 50 Filed: 12/16/2020 Pages: 91
No. 20-3414
IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT
DONALD J. TRUMP, as candidate for

President of the United States of America,
Plaintiff-Appellant,
v.
WISCONSIN ELECTIONS COMMISSION, et al.,

Defendants-Appellees,
Appeal from the United States District Court

for the Eastern District of Wisconsin, Milwaukee Division
Civil Action No. 2:20-cv-01785
Hon. Brett H. Ludwig
APPELLANT’S BRIEF
William Bock, III

James A. Knauer
Kevin D. Koons
Kroger, Gardis & Regas, LLP
111 Monument Circle, Suite 900
Indianapolis, Indiana 46204
(317) 692-9000
Attorneys for Plaintiff-Appellant Donald

J. Trump
CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
The undersigned attorneys, pursuant to Circuit Rule 26.1, on behalf of
Plaintiff-Appellant Donald J. Trump, discloses the following:
1. The full name of every party that the attorney represents in the case:
Donald J. Trump
2. The names of all law firms whose partners or associates have appeared
for the parties in the case (including proceedings in the district court or before an
administrative agency) or are expected to appear for the party in this court:
Kroger, Gardis & Regas, LLP

Indianapolis, Indiana 46204-5125
3. If the party or amicus is a corporation:
a. Identify all its parent corporation, if any, and
N/A
b. List any publicly held company that owns 10% or more of the
party’s or amicus’ stock:
N/A
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................... V
JURISDICTIONAL STATEMENT ............................................................................... 1
A. District Court Jurisdiction ....................................................................... 1
B. Appellate Jurisdiction .............................................................................. 1
STATEMENT OF THE ISSUES ................................................................................... 2
STATEMENT OF THE CASE....................................................................................... 2
A. Nature of the Case.................................................................................... 2
B. Course of Proceedings and Disposition Below ........................................ 5
C. Statement of Facts ................................................................................... 7
1. Wisconsin’s absentee voting procedures. ...................................... 8
2. Election workers completed witness address

information that was missing from absentee ballot
certificates. ..................................................................................... 9
3. Defendants’ statements on and widespread use of

Wisconsin’s “indefinitely confined” exception for
absentee ballot requests. ............................................................. 13
4. Defendants installed 500 unmanned absentee

ballot drop boxes around the state. ............................................. 15
5. The City of Madison held “Democracy in the Park”

events during which volunteers collected absentee
ballots at 206 parks around the city. .......................................... 19
SUMMARY OF ARGUMENT ..................................................................................... 20
ARGUMENT ................................................................................................................ 22
A. The Electors Clause................................................................................ 22
1. The Electors Clause vests exclusive authority in

the state “Legislature” ................................................................. 22
i
2. The State Election Code cannot be significantly

altered by non-legislative actors without
implicating the Electors Clause .................................................. 23
3. The district court erred by concluding the Electors

Clause requires no more than that a Presidential
election in Wisconsin be conducted by popular vote .................. 25
i. Plain Meaning of “Manner” As Used in the

Electors Clause ................................................................. 27
ii. Judicial Construction of “Manner” As Used

in the Contemporaneously Adopted Electors
and Elections Clauses ....................................................... 28
4. The district court erred through alternative

holdings that the WEC’s guidance was authorized
by the Legislature and/or that any departures were
not material or significant ........................................................... 30
5. The district court erred by concluding the adoption

of absentee ballot “drop boxes” by Wisconsin
election administrators did not violate the Electors
Clause ........................................................................................... 34
i. The district court’s order barely references

absentee ballot drop boxes ................................................ 34
ii. Absentee ballot drop boxes are inconsistent

with the legislative plan for voting absentee
ballots in Wisconsin .......................................................... 34
iii. The WEC’s endorsement of absentee ballot

drop boxes .......................................................................... 37
iv. Absentee ballot drop boxes in Wisconsin

were a late breaking but major development
in the Wisconsin election landscape ................................. 38
v. Absentee ballot drop boxes had a material

impact on the 2020 Presidential election in
Wisconsin .......................................................................... 38
vi. So-called “human drop boxes” in the City of

Madison had a material impact on the 2020
Presidential election ......................................................... 40
ii
6. The district court erred by concluding that

guidance issued by the WEC authorizing clerks to
alter absentee ballot witness certifications did not
violate the Electors Clause .......................................................... 42
i. The Wisconsin Election Code bars clerks

from altering absentee ballot witness
certificates in any way ...................................................... 42
ii. Since 2016 the WEC has issued shifting

guidance on the authority of clerks to alter
absentee ballot witness certificates.................................. 42
iii. On October 19, 2020, the WEC strikes again,

altering guidance and endorsing certificate
alterations undertaken without knowledge of
the voter ............................................................................ 45
iv. The WEC’s October 19, 2020, guidance on

altering absentee ballot witness certificates
had a material impact on the 2020
Presidential election ......................................................... 46
7. The district court erred by concluding that

guidance issued by the WEC altering the
“indefinitely confined” status of voters did not
violate the Electors Clause .......................................................... 46
i. The Wisconsin Election Code limits the

“indefinitely confined” exception to four
physical conditions ............................................................ 46
ii. The Clerks in Dane and Milwaukee Counties

explicitly advised that all voters could use
indefinite confinement in order to avoid
Wisconsin’s photo identification law ................................ 47
iii. On March 29, 2020, the WEC issued

inaccurate guidance concerning indefinite
confinement in conflict with State law ............................ 47
iv. On March 31, 2020, the Wisconsin Supreme

Court reprimanded the Clerks in Dane and
Milwaukee Counties ......................................................... 48
iii
v. The Wisconsin Supreme Court waited until

December 14, 2020, to issue its final decision,
leaving in place the WEC’s erroneous
guidance throughout the Presidential
election .............................................................................. 48
vi. Wisconsin’s failure to follow the clear

direction of the Wisconsin Legislature on the
“indefinitely confined” exception had a
material impact on the 2020 Presidential
election in Wisconsin ........................................................ 49
B. The Equal Protection Clause ................................................................. 49
1. The district court erred by finding Plaintiff waived

his claim under the Equal Protection Clause ............................. 49
2. The district court erred by failing to find that

standard-less, non-uniform implementation of
absentee ballot drop boxes violates Equal
Protection ..................................................................................... 51
C. The President’s Requested Remedy....................................................... 52
1. Declaratory relief is appropriate ................................................. 52
2. Injunctive relief is appropriate ................................................... 53
CONCLUSION............................................................................................................. 55
CERTIFICATE OF COMPLIANCE ............................................................................ 55
CERTIFICATE OF SERVICE ..................................................................................... 56
iv
TABLE OF AUTHORITIES
Cases
Ass’n of Cmty. Orgs. for Reform Now,

56 F.3d ...................................................................................................................... 29
Bush v. Gore,
531 U.S. 98 (2000) ............................................................................................ passim
Bush v. Palm Beach Cty. Canvassing Bd.,

531 U.S. .................................................................................................................... 23
Carey v. Piphus,
435 U.S. 247 (1978) .................................................................................................. 33
Carson v. Simon,
978 F.3d 1051 (8th Cir. 2020) .................................................................................. 23
Chiafalo v. Washington,
140 S. Ct. 2316 (2020) ........................................................................................ 28, 29
Crittenden v. Chappell,
804 F.3d 998 (9th Cir. 2015) .................................................................................... 33
Democracy N Carolina v. N. Carolina State Bd. of Elections,

2020 WL 6589362 (M.D.N.C. Oct. 2, 2020) ............................................................. 23
Democratic Nat'l Comm. v. Bostelmann,

451 F. Supp. 3d 952 (W.D. Wis. 2020) ..................................................................... 10
Democratic Nat'l Comm. v. Bostelmann,

No. 20-1538, 2020 WL 3619499 (7th Cir. Apr. 3, 2020) .......................................... 11
FAS, LLC v. Town of Bass Lake,

733 N.W.2d 287 (Wis. 2007)..................................................................................... 42
Harkless v. Brunner,
545 F.3d 445 (6th Cir. 2008) .................................................................................... 25
Jefferson v. Dane County,

2020 WL 7329433 (Wis. Dec. 14, 2020) ................................................... 8, 14, 15, 48
v
Judge v. Quinn,
387 F. App'x 629 (7th Cir. 2010) .............................................................................. 25
Judge v. Quinn,
612 F.3d 537 (7th Cir.) ............................................................................................. 29
McPherson v. Blacker,
146 U.S. 1 (1892) ................................................................................................ 22, 23
Medtronic, Inc. v. Mirowski Family Ventures, LLC,

571 U.S. 191 (2014) .................................................................................................. 52
Olson v. Lindberg,
85 N.W.2d 775 (Wis. 1957)....................................................................................... 35
Powers v. Ohio,
499 U.S. 400 (1991) .................................................................................................. 33
Reynolds v. Sims,
377 U.S. 533 (1964) .................................................................................................. 51
Serv. Employees Int'l Union, Local 1 v. Vos,

946 N.W.2d 35 (Wis. 2020)....................................................................................... 31
Thomas v. Gen. Motors Acceptance Corp.,

288 F.3d 305 (7th Cir. 2002) ........................................................................ 26, 31, 32
Trump v. Biden,
No. 2020AP2038, 2020 WL 7331907 (Wis. Dec. 14, 2020)............................ 4, 16, 34
U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779 (1995) .................................................................................................. 29
United States v. Frederick,

182 F.3d 496 (7th Cir. 1999) .................................................................................... 32
United States v. Meyer,

157 F.3d 1067 (7th Cir. 1998) .................................................................................. 32
Wilton v. Seven Falls Co.,

515 U.S. 277 (1995) .................................................................................................. 52
Statutes
28 U.S.C. § 2201 ........................................................................................................... 52
28 U.S.C. § 2202 ............................................................................................................. 1
vi
3 U.S.C. § 1................................................................................................................... 52
3 U.S.C. § 15 ................................................................................................................. 54
3 U.S.C. § 2................................................................................................................... 53
3 U.S.C. § 7................................................................................................................... 52
42 U.S.C. § 1983 ......................................................................................................... 1, 3
U.S. Const. amend. XIV ................................................................................................. 2
U.S. Const. art. I, § 4, cl. 2........................................................................................... 29
U.S. Const. art. II, § 1, cl. 2 ................................................................................. passim
Wis. Stat. § 5.05 ..................................................................................................... 17, 30
Wis. Stat. § 6.84 ................................................................................................... passim
Wis. Stat. § 6.855 ............................................................................................. 17, 35, 39
Wis. Stat. § 6.86 ........................................................................................... 9, 40, 46, 47
Wis. Stat. § 6.87 ................................................................................................... passim
Wis. Stat. § 6.875 ......................................................................................................... 39
Wis. Stat. § 6.88 ................................................................................................... passim
Wis. Stat. § 7.15 ..................................................................................................... 35, 39
Wis. Stat. § 8.25(1) ....................................................................................................... 26
Rules
Fed. R. App. P. 4(a)(1)(A) ............................................................................................... 2
Other Authorities
eroG .v hsuB and Its Disguises: Freeing Bush v. Gore From Its Hall of Mirrors,
115 Harv. L. Rev. 170 (2001) ................................................................................... 54
vii
JURISDICTIONAL STATEMENT
A. District Court Jurisdiction
The United States District Court for the Eastern District of Wisconsin had
subject matter jurisdiction over this matter as a civil action arising under the laws
of the United States pursuant to 42 U.S.C. § 1983 and Art. I, § 4, cl. 2, Art. II, § 1,
cl. 4 and the First and Fourteenth Amendments of the United States Constitution,
and 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1343 (civil rights
and elective franchise), 28 U.S.C. § 2201 (authorizing declaratory relief), and 28
U.S.C. § 2202 (authorizing injunctive relief). Plaintiff-Appellant was a candidate for
President of the United States in Wisconsin’s November 3, 2020 election. (ECF No.
1.) Defendants are state and local election officials sued in their official capacities
for declaratory and injunctive relief regarding ultra vires modifications to the
Legislature’s explicit directions for the manner of conducting absentee voting in
Wisconsin for the presidential election. (ECF No. 1.) The Defendants’ “significant
departure[s] from the legislative scheme for appointing Presidential electors
present[] a federal constitutional question.” Bush v. Gore, 531 U.S. 98, 113 (2000)
(Rehnquist, C.J., concurring).
B. Appellate Jurisdiction
The United States Court of Appeals for the Seventh Circuit has jurisdiction over
appeals from the United States District Court for the Eastern District of Wisconsin,
Milwaukee Division and over appeals from final orders pursuant to 28 U.S.C. §
1291.
1
On December 12, 2020, the district court entered its Decision and Order (A001)
and Judgment. (A024).1 A notice of appeal was timely filed on December 12, 2020,
which is within 30 days of both entries of the district court’s orders pursuant to Fed.
R. App. P. 4(a)(1)(A).
STATEMENT OF THE ISSUES
1. Whether Defendants’ circumvention of safeguards established by the
Wisconsin Legislature for distribution and collection of absentee ballots resulted in
violations of U.S. Const. art. II, § 1, cl. 2 because the Presidential election was not
conducted in “such Manner as the Legislature may direct,” rendering the election
void.
2. Whether the standard-less, non-uniform implementation of absentee
ballot drop boxes violated Plaintiff-Appellant Donald J. Trump’s right to Equal
Protection, in violation of the U.S. Const. amend. XIV.
STATEMENT OF THE CASE
A. Nature of the Case
Plaintiff-Appellant Donald J. Trump, as candidate for President of the United
States of America, brings this action for injunctive and declaratory relief against
Citations to items included in the President’s Circuit Rule 30(a) appendix will
1
be denoted “A” followed by the relevant page number(s) of that appendix. Citations
to items in the President’s Circuit Rule 30(b) appendix will be denoted “B” followed
by the relevant page number(s) of that appendix. References to portions of the
record not contained in any appendix to this brief will cite to the relevant district
court docket entry (i.e., “ECF No. ___”), and the ECF page number for pinpoint
cites. However, citations to the transcript of the December 10, 2020 hearing (ECF
No. 130) will be cited to the page and line numbers of the transcript as “Tr. [page
no.]:[line no.].”
2
the Defendants—various Wisconsin election officials2—concerning the presidential
election held in Wisconsin on November 3, 2020, particularly in relation to absentee
voting. President Trump seeks redress under 42 U.S.C. § 1983 for the Defendants’
violations of the Equal Protection Clause of the Fourteenth Amendment to the U.S.
Constitution and the Electors Clause of Article II, Section 1, Clause 2, by failing to
conduct the election “in such Manner as the Legislature thereof may direct.”
In the 1980s, long before the prospect of a Trump or Biden candidacy, the
Wisconsin Legislature declared Wisconsin policy that absentee voting “is a privilege
exercised wholly outside the traditional safeguards of the polling place” and thus
“must be carefully regulated to prevent the potential for fraud and abuse.” Wis.
Stat. § 6.84(1). The Legislature then prescribed a statutory absentee voting
procedure and declared that “[b]allots cast in contravention of the procedures
2Throughout this Brief, the following party definitions and abbreviations have
been used:
“WEC” refers to Defendants Wisconsin Election Commission, and its

members Ann S. Jacobs, Mark L. Thomsen, Marge Bostelman, Dean
Knudson, Robert F. Spindell, as well as Douglas J. La Follette, Wisconsin
Secretary of State, who joined in WEC’s responses.
“Milwaukee City Defendants” refers to Defendants Mayor Tom Barrett,

City Clerk Jim Owczarski, and Claire Woodall-Vogg, Executive Director of
the Milwaukee Election Commission.
“Milwaukee County Defendants” refers to County Clerk George L.

Christenson and County Election Director Julietta Henry.
“Joint Municipal Defendants” refers to Defendants County Clerk Scott

McDonell (Dane County), Mayor Satya Rhodes-Conway and Clerk Maribeth
Witzel-Behl (City of Madison), Mayor Cory Mason and Clerk Tara Coolidge
(City of Racine), Mayor John Antaramian and Clerk Matt Krauter (City of
Kenosha), Mayor Eric Genrich and Clerk Kris Teske (City of Green Bay).
3
specified in those provisions may not be counted.” Wis. Stat. § 6.84(2). Defendants,
however, implemented absentee voting procedures outside those “carefully
regulated” provisions in the November 2020 election. In particular, President
Trump identified four such ultra vires absentee voting procedures and practices:
1. WEC issued guidance and other Defendants and election officials
throughout Wisconsin installed 500 unmanned ballot drop box
repositories that “are not found anywhere in the absentee voting
statutes”;3
2. In reliance upon the WEC’s drop box guidance the City of Madison
held “Democracy in the Park” events during which it set up 200 sites
around the city where volunteers, referred to by the Clerk as “human
drop boxes,” collected more than 17,000 absentee ballots in advance of
the early in-office absentee voting period established by statute;
3. Municipal clerks improperly injected themselves into the absentee
voting process by unilaterally completing missing information on
absentee ballot envelopes, typically related to the witness’s address,
contrary to statute; and
4. Defendants circumvented the Legislature’s photo ID requirements by
encouraging widespread misuse of Wisconsin’s “indefinitely confined”
exception for absentee ballot requests.
3Trump v. Biden, No. 2020AP2038, 2020 WL 7331907, at *20 (Wis. Dec. 14,
2020) (Roggensack, C.J., Ziegler & Rebecca Grassl Bradley, JJ., dissenting).
4
Additionally, the Wisconsin Election Code contains mandatory provisions
requiring that absentee ballots in the first three categories listed above may not be
counted and cannot be included in the certified results of any election. Defendants
serially refused to enforce this aspect of the Wisconsin Election Code.
These practices and methods violated the Electors Clause because they
amounted to an election conducted by executive branch officials that was not “in
such Manner as the Legislature thereof may direct.” President Trump seeks a
declaratory judgment that the election was not conducted in a lawful manner and
therefore electoral votes cast on December 14 as a result of the flawed election are
not valid, and injunctive relief ordering Governor Evers to issue a certificate of
determination consistent with, and only consistent with, the appointment of electors
by the Wisconsin legislature.
B. Course of Proceedings and Disposition Below
On December 2, 2020, just two days after Wisconsin completed its statewide
canvass and recount (B028 ¶ 8), President Trump filed the instant action, along
with a request for an expedited final hearing and trial on the merits. (ECF Nos. 1
and 6.) On December 3, 2020, the district court ordered a scheduling conference for
the following day (ECF No. 14) at which all parties appeared by counsel. At the
scheduling conference, the district court set a final hearing and trial on the merits
for December 10, 2020, and ordered the Defendants to respond to the Plaintiff’s
Complaint and Motion for Preliminary Injunction by 5 p.m. on December 8, 2020,
with Plaintiff’s Reply due by 12 noon on December 9, 2020. (ECF No. 45.)
5
On December 8, 2020, in addition to responses to Plaintiff’s Motion for
Preliminary Injunction, Defendants filed Motions to Dismiss (ECF Nos. 69, 71, 78,
86 (including a supporting Declaration by Defendant Claire Woodall-Vogg, ECF No.
80), 84, 96, 97, and 99) (the “Motions to Dismiss”). On December 9, 2020, Plaintiff
filed his response to the Motions to Dismiss. (ECF No. 109.)
The district court repeatedly admonished the parties to reach a set of stipulated
facts to obviate the need for witnesses. (ECF No. Nos. 93, 104, 105, and 122.)
On December 10, 2020, the district court held the final hearing and trial on the
merits via remote proceedings. (ECF No. 116, 130.) At the outset of the hearing, the
district court again admonished the parties to reach a set of stipulated facts and
gave the parties a lengthy recess to complete their stipulations. (Tr. 14:4-15:24.)
The parties ultimately reached a stipulated set of facts and all exhibits, including
any exhibits attached to the Defendants’ motions to dismiss (B025-B039; ECF Nos.
117, 119, 73, 80, and 82), and the district court heard closing arguments of counsel.
(Tr. 16:4-17:12 (discussion of stipulations4), B025-B034 (filed stipulations), B037-
B038 and B039 (stipulated affidavits).) At the conclusion of the hearing, the Court
denied the motions to quash and motion in limine as moot. (ECF No. 133.)
On December 12, 2020, the district court issued a Decision and Order granting
the Motions to Dismiss and denying Plaintiff’s motion for preliminary injunction
(A001), and entered Judgment against Plaintiff. (A024.) That same day, Plaintiff
timely filed his Notice of Appeal. (ECF No. 136.)
4 The remainder of the hearing transcript comprises closing argument.
6
C. Statement of Facts
On November 3, 2020, Wisconsin joined the rest of the nation in holding a
general election for selecting Electors to vote for the Offices of President and Vice
President of the United States. (B027 ¶ 7.) Nearly 3,300,000 total ballots were cast
in Wisconsin’s November 3rd election. (B027 ¶ 7.) Of that amount, 1,957,514 were
absentee ballots, 651,422 of which were cast in person, with the remaining
1,306,092 (2/3rds of all absentee ballots) cast by mail or in a drop box.5 By
comparison, in Wisconsin’s 2016 presidential election, just over 3,000,000 ballots
were cast, only 819,316 of which were absentee ballots, with 674,514 of those
absentee ballots cast in person, and the remaining 144,802 (18% of all absentee
ballots) cast by mail.6
On November 17, 2020, the last county in Wisconsin submitted its canvass of
votes to the Wisconsin Elections Commission (“WEC”). (B028 ¶ 8.)
On November 18, 2020, President Trump requested a recount in Dane and
Milwaukee Counties. (B028 ¶ 9.) The final state canvass was completed on
November 30, 2020. (B028 ¶ 8.) Two days later, President Trump filed his
Complaint. (ECF No. 1.) Both in his Complaint and at the trial, President Trump
challenged the four absentee ballot practices set forth above in President Trump’s
https://elections.wi.gov/sites/elections.wi.gov/files/2020-
5
11/AbsenteeCounts_County%2011-1-2020.csv.
https://elections.wi.gov/sites/elections.wi.gov/files/2020-
6
10/Exhibit%20A%20Absentee%20Voting%20Data%202016-
2020%20%28Amended%209.23.2020%29.pdf
7
description of the Nature of the Case. The relevant facts pertaining to these
methods and practices are stated separately below.
1. Wisconsin’s absentee voting procedures.
In the 1980s, the Wisconsin Legislature made a policy choice that absentee
voting is a privilege not a right:
[V]oting by absentee ballot is a privilege exercised wholly outside the

traditional safeguards of the polling place. The legislature finds that
the privilege of voting by absentee ballot must be carefully
regulated to prevent the potential for fraud or abuse[.]
Wis. Stat. § 6.84(1) (emphases added). The Legislature also directed:
Notwithstanding s. 5.01(1), with respect to matters relating to the

absentee ballot process, ss. 6.86, 6.87(3) to (7) and 9.01(1)(b)2. and 4.
shall be construed as mandatory. Ballots cast in contravention
of the procedures specified in those provisions may not be
counted. Ballots counted in contravention of the procedures specified
in those provisions may not be included in the certified result of
any election.
Wis. Stat. § 6.84(2) (emphases added); see also, Jefferson v. Dane County, 2020 WL
7329433 at *4 ¶16 (Wis. Dec. 14, 2020) (“matters relating to the absentee ballot
process…shall be…mandatory.”) (quoting statute).
“In most circumstances, the requirements to obtain an absentee ballot are
twofold: (1) apply with the elector’s municipal clerk and (2) provide a photo proof of
identification with the application.” Id. at 9 ¶ 17 (footnote omitted). However, “[i]f
an elector qualifies to receive an absentee ballot [as (1) an elector who is indefinitely
confined or (2) an elector who is disabled for an indefinite period], the elector is not
required to provide photo identification to obtain a ballot.” Id. at 10 ¶¶ 18–19. “In
addition, when an elector qualifies to receive an absentee ballot because he or she is
8
indefinitely confined or disabled for an indefinite period, the elector automatically
receives an absentee ballot for every election until the elector notifies the municipal
clerk that he or she is no longer indefinitely confined, fails to cast and return a
ballot, or the clerk receives reliable information that the ‘elector no longer qualifies
for the service.’” Id. at 10–11 ¶ 20 (quoting Wis. Stat. § 6.86(2)(a), (b)).
2. Election workers completed witness address information that was

missing from absentee ballot certificates.
Wisconsin law provides that absentee ballot return envelopes must contain a
voter’s certification of certain information, must be executed by a witness, and must
include the witness’s address. Wis. Stat. § 6.87(2). In 2015, the Legislature
indicated it deemed the witness address information of utmost importance when it
added the following provision: “If a certificate is missing the address of a witness,
the ballot may not be counted.” Wis. Stat. § 6.87(6d).
In response to the new provision, WEC “set a policy that a complete address
contains a street number, street name and name of municipality.” (B052) (emphasis
in original). And just three weeks before the 2016 election, WEC issued new
guidance stating:
The WEC has determined that clerks must take corrective actions in
an attempt to remedy a witness address error. If clerks are reasonably
able to discern any missing information from outside sources, clerks
are not required to contact the voter before making that correction
directly to the absentee certificate envelope.
(B052) (first emphasis in original, second emphasis added). WEC issued this
guidance despite the “concern some clerks have expressed about altering
information on the certificate envelope, especially in the case of a recount.” (B053.)
9
WEC summed up its guidance, stating “municipal clerks shall do all that they can
reasonably do to obtain any missing part of the witness address,” including
supplying missing information based on the clerk’s own personal knowledge. (B053.)
Three weeks later, President Trump won Wisconsin’s electoral votes by a
margin of just over 22,700 votes after a statewide recount. (A001.) There is no
evidence in the record whether any envelope for an absentee ballot cast in that
election contained any witness address information filled in by election officials.
President Trump was not a candidate in any subsequent Wisconsin elections until
the 2020 election season.
In late March 2020, amidst fears of a global pandemic in the weeks leading to
Wisconsin’s April 7th presidential primary, the Democratic National Committee
and Democratic Party of Wisconsin filed an action for emergency preliminary
injunctive relief to enjoin enforcement of the witness requirement for absentee
voting. Democratic Nat'l Comm. v. Bostelmann, 451 F. Supp. 3d 952, 958 (W.D. Wis.
2020). On April 2, 2020, the district court in that case enjoined WEC from enforcing
the statutory requirement that an absentee ballot must be witnessed, as long as the
voter provided a written statement that he or she could not safely obtain a witness
certification despite reasonable efforts to do so. Id. at 983. The very next day, this
Court stayed that injunction, expressing “concern[s] with the overbreadth of the
district court’s order, which categorically eliminates the witness requirement
applicable to absentee ballots and gives no effect to the state’s substantial interest
10
in combatting voter fraud.” Democratic Nat'l Comm. v. Bostelmann, No. 20-1538,
2020 WL 3619499, at *2 (7th Cir. Apr. 3, 2020).
On April 5, 2020, WEC issued new guidance in light of this Court’s decision.
(See B060 (see header on B061 identifying guidance as “Post Appeals Court
Decision Absentee Signature Requirement”).) This new guidance appeared to
retreat from the October 2016 guidance concerning the clerk’s role in filling in
missing witness information, as evidenced by the following:
6. What if a clerk has received a ballot back from a voter with

required witness information missing?
They should make their best effort to contact the voter to

advise them of their options to provide the missing
information. …
7. What are the options for a voter to provide missing witness

information on the absentee ballot return envelope?
The voter has the option to correct the absentee certificate

envelope in the clerk’s office, by mail, or at the polling
place/central count location on election day.
(B061, bold italics added.) Noticeably missing from this guidance was any
suggestion that election officials could fill in missing witness address information;
rather, everything in the guidance suggested otherwise.
On September 18, 2020, once the spotlight on absentee witnesses had passed,
WEC published an updated comprehensive, 250-page Election Administration
Manual for Wisconsin Municipal Clerks. (ECF No. 117-72 p. 23.) Buried on page 99
of the Manual, WEC included the following statement: “Clerks may add a missing
witness address using whatever means are available. Clerks should initial next to
11
the added witness address.” (B070 (for extract of page); ECF No. 80-2 p. 101¶ 8.b.).
However, under the immediately following heading, Correcting Defective Absentee
Certificate Envelopes, the Manual specified the step-by-step process for “curing”
defective certificate envelopes:
1. The municipal clerk reviews each absentee certificate envelope…for

any errors (e.g. missing…witness signature and address…).
2. If there is an error, the clerk should contact the voter, if possible.

Wis. Stat. § 6.87(9).
a. The voter has the option to correct the absentee certificate

envelope in the clerk’s office, by mail, or at the polling
place/central count location on Election Day.
* * *
b. The original witness must always be present to correct any

certificate errors.
(B070 (for extract of page); ECF No. 80-2 pp. 101–02, emphases added.)
On October 19, 2020, just two weeks before the election, WEC again issued
further guidance entitled, Spoiling Absentee Ballot Guidance. (B083.) On page 3,
under the heading, Absentee Voter Errors or Ballot Damage After the Spoiling
Deadline, WEC stated the following:
On Election Day, if a voter needs to correct…missing voter

information, missing voter signature, or missing witness signature.
The witness can appear without the voter to add their signature
or address. Please note that the clerk should attempt to resolve
any missing witness address information prior to Election Day if
possible, and this can be done through reliable information (personal
knowledge, voter registration information, through a phone call with
the voter or witness). The witness does not need to appear to add a
missing address
(B085, emphases added.)
12
In the November 2020 Wisconsin election, election workers added information
to the witness address on the envelopes of unspecified number of absentee ballots,7
and these absentee ballots were counted as valid votes. (B029 ¶ 17.) At the
Milwaukee Central Count on election day, Defendant Woodall-Vogg made an
announcement that ballot counters who happened on a ballot without a witness
address could go to a computer, look the address up and insert it on the ballot.
(B037-B038 ¶ 11.) In the district court below, Defendants claimed they used WEC’s
written guidance to guide their handling of the absentee ballot witness addresses.
(B028 ¶ 11.) However, Defendants did not specify which written guidance they
followed.
Neither municipal clerks’ offices nor WEC keep statistics or records that would
enable the calculation of the number of ballot envelopes containing such additions.
(B029 ¶ 17.)
3. Defendants’ statements on and widespread use of Wisconsin’s

“indefinitely confined” exception for absentee ballot requests.
On March 24, 2020, WEC posted guidance in one of its FAQ documents relating
to the COVID-19 pandemic, which included the following statements:
During the current public health crisis, many voters of a certain age or
in at-risk populations may meet [the] standard of indefinitely confined
until the crisis abates.
(ECF No. 117-2 pp. 1–2.)
Approximately 5,500 ballots had defective or missing witness address

7
information in Milwaukee County and an unknown number of such ballots from

Dane County. (ECF Nos. 132-3 at 76:10–12, 132-1 p. 2, and 132-2 at 7 ¶ 11.a)
13
The next day, March 25, 2020, the Dane County Clerk McDonell emailed an
announcement to all Dane County Municipal clerks and posted on his official
Facebook page urging “all voters who request a ballot and have trouble presenting
valid ID to indicate that they are indefinitely confined.” (B030 ¶ 23.) That same day,
the Milwaukee County Clerk issued a similar statement. (B031 ¶ 25.)
On March 27, 2020, Mark Jefferson and the Republican Party of Wisconsin filed
an Original Action with the Wisconsin Supreme Court seeking a declaration that
the Dane County Clerk’s statement was erroneous and a preliminary injunction
directing him to remove his posts and issue a corrective statement. Jefferson, 2020
WL 7329433, at *2.
On March 29, 2020, WEC issued further guidance stating:
1. Designation of indefinitely confined status is for each individual

voter to make based upon their current circumstance. It does not
require permanent or total inability to travel outside of the
residence. The designation is appropriate for electors who are
indefinitely confined because of age, physical illness or infirmity or
are disabled for an indefinite period.
2. Indefinitely confined status shall not be used by electors simply as

a means to avoid the photo ID requirement without regard to
whether they are indefinitely confined because of age, physical
illness, infirmity or disability.
(A008; B054; ECF No. 117-2 p. 1.)
On March 31, 2020, the Wisconsin Supreme Court granted the request for a
temporary injunction, holding that McDonell’s public advice urged voters to violate
Wisconsin election law and ordered any future postings to conform to the above two
paragraphs from WEC’s statement. (ECF No. 73-5 pp. 2–3.) The Court confined its
14
holding to the two specific paragraphs quoted in its order and did not adjudicate the
remaining content from the WEC guidance, which WEC did not retract but rather
re-published in its March 29 guidance. (B055). The Wisconsin Supreme Court then
granted the Petition for Original Action and assumed jurisdiction over the case the
following day. Jefferson, 2020 WL 7329433, at *2. The Wisconsin Supreme Court’s
final adjudication, however, remained pending until after the election, when it
rendered its final decision on December 14, 2020. Id.
Meanwhile, in response to the Wisconsin Supreme Court’s temporary
injunction, the Milwaukee County Clerk removed his Facebook posting. (B031 ¶ 26.)
As of the November 3, 2020 election, a total of 11,374 voters in the City of
Madison had claimed to be indefinitely confined. (B030 ¶ 21.) Similarly, a total of
29,391 voters in the City of Milwaukee had claimed to be indefinitely confined.
(B030 ¶ 22.)
As of November 10, 2020, approximately 240,000 Wisconsin voters had
requested absentee ballots claiming to be “indefinitely confined.” (B029 ¶ 18.)8 By
comparison, a total of 66,611 Wisconsin voters cast absentee ballots in the 2016
general presidential election claiming to be indefinitely confined. (B029-B030 ¶ 19.)
4. Defendants installed 500 unmanned absentee ballot drop boxes

around the state.
In June 2020, the Mayors of Wisconsin’s five largest cities—Madison,
Milwaukee, Racine, Kenosha and Green Bay—sought private grant funding for a
The number of ballots that were actually cast and counted on that basis was
8
unknown as of the trial date. (B029 ¶ 18.)
15
collaboratively developed plan for the upcoming November election that would,
among other things, “Encourage and Increase Absentee Voting (By Mail and Early,
In-Person),” B090, and secure “resources to purchase additional secure drop-boxes
and place them at key locations throughout their cities, including libraries,
community centers, and other well-known places….” (B096.)
On July 6, 2020, the Mayors announced they had secured $6.3 million in
funding from Center for Tech and Civic Life (CTCL) for their plan. (ECF No. 117-
28.) Although the Mayors secured funding for their plan, the WEC had not yet
issued any guidance for drop boxes, which “are not found anywhere in the absentee
voting statutes.”9
On August 19, 2020, WEC issued guidance on absentee ballot drop boxes.
(A008; B063.) Although WEC’s guidance largely followed a nationwide resource
developed by the U.S. Cybersecurity and Infrastructure Security Agency (CISA),
WEC’s guidance omitted a key warning from CISA:
If you are considering the use of ballot drop boxes, you should review
your existing laws and requirements and determine whether emergency
changes may be necessary. A full list of state practices can be found at
the National Conference of State Legislators (NCSL) website listed in
the Additional Resources section.
(ECF No. 117-15 p. 3, emphasis added.) Notably, WEC’s guidance on drop boxes did
not cite a single Wisconsin statute and made no attempt to identify any statutory
authority for its guidance. (See B063.) WEC also did not attempt to “[p]romulgate
rules under ch. 227 applicable to all jurisdictions for the purpose of interpreting or
9Trump, 2020 WL 7331907, at *20 (Roggensack, C.J., Ziegler & Rebecca Grassl
Bradley, JJ., dissenting).
16
implementing the laws regulating the conduct of elections” relating to dropboxes.
Wis. Stat. § 5.05(1)(f). Although the Wisconsin Election Code prescribes rules for
establishing alternate absentee ballot sites at which voters “may request and vote
absentee ballots and to which voted absentee ballots shall be returned by electors,”
that site “shall be staffed by the municipal clerk or the executive director of the
board of election commissioners” or their employees. Wis. Stat. § 6.855(1) and (3).
However, WEC’s guidance directly contradicted these rules, instead stating that
drop boxes can be unstaffed:
(B063.)
Sometime near the week of September 10, 2020, the City of Milwaukee installed
15 new dropboxes around the city. (ECF No. 117-58.) But later, just a week before
the election, Milwaukee replaced its 15 dropboxes with “sturdier, longer-lasting”
dropboxes that had “important security features.” (B113; B032 ¶ 29.) This last-
minute replacement calls into question the strength and security of its earlier
dropboxes. Meanwhile, just weeks before the election, the City of Madison added 14
dropboxes around the city. (B110; B032 ¶ 30.) None of the absentee drop boxes in
Dane and Milwaukee Counties were staffed. (B032 ¶ 27.) One box in Madison was
placed in a large public park not adjacent to any building. (B032 ¶ 30.)
17
Over 500 absentee ballot boxes were used across Wisconsin in the November
2020 presidential election. (B032 ¶ 28.) Dropboxes were deployed in a variety of
contexts, and WEC’s “guidance” lacked any semblance of uniform standards. For
example, the City of Oshkosh implemented a “drop box” with a sign that it was “for
tax bills, water bills, parking tickets, and absentee ballots.” (B108.) In its discovery
responses, WEC provided a list of questions and answers from municipal clerks to
WEC. (B077.) A sampling of those questions (left side) and WEC’s answers (right
side) are as follows:
(B077.)
(B078.)
18
(B079.)
While WEC does not maintain statewide records concerning the number of
ballots collected from dropboxes, the City of Madison collected at least 9,346 and the
City of Milwaukee collected approximately 65,000–75,000 absentee ballots from
dropboxes for the November 2020 election. (B028-B029 ¶¶ 12–14.)
5. The City of Madison held “Democracy in the Park” events during

which volunteers collected absentee ballots at 206 parks around the
city.
In Madison, Defendant City Clerk Witzel-Behl conceived of an event she called
“Democracy in the Park” held on two consecutive Saturdays in late September and
early October. (B032 ¶ 31.) The events consisted of stationing primarily volunteer
poll workers at more than 200 Madison parks to get people registered to vote, accept
absentee ballots, and serve as a witness for people who had not yet filled out their
absentee ballot. (ECF No. 117-54; B109.) Defendant Witzel-Behl referred to the poll
workers as “human drop boxes.” (B029 ¶ 16.) Ballot materials and voted absentee
ballots at the end of the day were exchanged between poll workers and couriers
using a “code phrase.” (ECF No. 117-52 pp. 3, 21.)
19
The events were publicized and pushed by the Biden campaign. (ECF No. 117-
64.)
WEC did not issue any written guidance concerning the event, and Defendant
Witzel-Behl did not use any WEC written guidance in connection with the event.
(B028 ¶ 11.)
Concerns over the legality of the events caused a handful of voters to
preemptively file lawsuits asking a judge to declare that their absentee ballots had
been legally collected at the events. (ECF No. 117-54 p. 2.)
A total of 17,271 absentee ballots were collected through the two Democracy in
the Park events. (B029 ¶ 15.)
SUMMARY OF ARGUMENT
Defendants’ actions took place against the backdrop of a global pandemic and a
hotly contested presidential election, plunging Wisconsin into a maelstrom of
election litigation and uncertainty. Some Madison voters even preemptively sought
judicial refuge to determine whether their ballots counted after questions arose
about the Madison Clerk’s “Democracy in the Park.” This level of uncertainty is part
of the cost of policies which pushed the limits and went over the lines drawn by the
Legislature in the Wisconsin Election Code.
At the same time, the Wisconsin state judiciary is riven by a fractured State
Supreme Court that has largely decided election cases based only on threshold
procedural issues and has for the most part refused to address the merits of issues
that underlie this case. A partial exception that proves the rule is a case decided
20
just two days ago related to the “indefinitely confined” exception in the Election
Code much discussed here. The Wisconsin Republican Party filed that case in
March concerning important issues for the August and November elections in
Wisconsin, yet the Supreme Court did not reach a final decision until December 14.
In Bush v. Gore, the Supreme Court identified one of the questions presented as
“whether the Florida Supreme Court established new standards for resolving
Presidential election contests, thereby violating Art. II, § 1, cl. 2 of the United
States Constitution.” 531 U.S. at 113. This case presents the related question of
whether the Wisconsin Election Commission and other administrative Defendants
established new and different procedures for absentee voting in Wisconsin,
questions that the Wisconsin Supreme Court has refused to answer.
The Wisconsin Legislature declared Wisconsin policy that absentee voting “is a
privilege exercised wholly outside the traditional safeguards of the polling place”
and thus “must be carefully regulated to prevent the potential for fraud and abuse.”
Wis. Stat. § 6.84(1). The Legislature then prescribed a statutory absentee voting
procedure and declared that “[b]allots cast in contravention of…those provisions
may not be counted.” Wis. Stat. § 6.84(2).
Defendants, however, have implemented a very permissive and different
approach to absentee voting, perhaps best summed up in WEC’s response to a
question from a municipal clerk asking whether two different municipalities can
share the same absentee ballot drop box: “There is nothing that prohibits it.”
(B078.) Like the teenager who pushes parental limits, Defendants take the view
21
that as long as the Legislature hasn’t expressly prohibited a practice, we can get
away with it. In this case, President Trump has challenged four such ultra vires
absentee voting procedures and practices. (See supra p. 4.)
The Defendants usurped the Legislature’s authority to establish absentee
voting procedures when they promulgated guidance and developed practices
contrary to the unambiguous requirements of the Wisconsin Election Code.
When state actors cross constitutional lines and tread on the authority of the
State Legislature in a Presidential election, it is the responsibility of federal courts
to hold the constitutional boundary. Only by holding the constitutional line will
these practices be deterred in the future.
ARGUMENT
A. The Electors Clause
Article II, Section 1, Clause 2, the “Electors Clause,” of the United States
Constitution provides in relevant part:
Each State shall appoint, in such Manner as the Legislature thereof

may direct, a Number of Electors, equal to the whole Number of
Senators and Representatives to which the State may be entitled in
the Congress[.]
1. The Electors Clause vests exclusive authority in the state

“Legislature”
The Electors Clause unambiguously vests power to determine the manner of
selecting Presidential electors exclusively in the “Legislature” of each state.
McPherson v. Blacker, 146 U.S. 1, 27 (1892). “Art. II, § 1, cl. 2, ‘convey[s] the
broadest power of determination’ and ‘leaves it to the legislature exclusively to
22
define the method’ of appointment.” Bush, 531 U.S. at 113 (Rehnquist, C.J.,
concurring), quoting McPherson, 146 U.S. at 27. “The state legislature’s power to
select the manner for appointing electors is plenary,” Bush v. Gore, 531 U.S. at 104.
“[I]n the case of a law enacted by a state legislature applicable not only to
elections to state offices, but also to the selection of Presidential electors, the
legislature is not acting solely under the authority given it by the people of the
State, but by virtue of a direct grant of authority made under Art. II, § 1, cl. 2, of the
United States Constitution.” Bush v. Palm Beach Cty. Canvassing Bd., 531 U.S. at
76. Courts are called upon to “respect . . . the constitutionally prescribed role of
state legislatures” while enforcing against other state actors, whether they be
courts,10 executives11 or election officials,12 the “responsibility to enforce the explicit
requirements of Article II.” Bush v. Gore, 531 U.S. at 115 (Rehnquist, C.J.,
concurring).
2. The State Election Code cannot be significantly altered by non-

legislative actors without implicating the Electors Clause
“A significant departure from the legislative scheme for appointing Presidential
electors presents a federal constitutional question.” Bush v. Gore, 531 U.S. at 113.
See, e.g., Bush v. Gore, supra, (court infringed on legislative authority under
10
Article II).
See, e.g., Carson v. Simon, 978 F.3d 1051, 1062 (8th Cir. 2020) (executive
11
branch official invaded exclusive authority of state legislature).
See, e.g., Democracy N Carolina v. N. Carolina State Bd. of Elections, 2020 WL

12
6589362, at *1–2 (M.D.N.C. Oct. 2, 2020), amended on reconsideration, 2020 WL

6591367 (M.D.N.C. Oct. 5, 2020) (district court considered whether directive of
State Board of Elections conflicted with State Election Code in violation of Article
II).
23
In Bush v. Gore the Supreme Court identified one of the questions presented as
“whether the Florida Supreme Court established new standards for resolving
Presidential election contests, thereby violating Art. II, § 1, cl. 2 of the United
States Constitution.” Id. at 103. In a concurring opinion joined by Justices Scalia
and Thomas, Chief Justice Rehnquist said “the text of the [state] election law itself,
and not just its interpretation by the courts of the States, takes on independent
significance” in the context of Art. II, § 1, cl. 2. Id. at 113.
The Chief Justice noted that, “[i]solated sections of the [election] code may well
admit of more than one interpretation, but the general coherence of the legislative
scheme may not be altered by judicial interpretation[.]” Id. at 114 (emphasis added).
Under Art. II, § 1, cl. 2 the Supreme Court must “determine whether a state court
has infringed upon the legislature’s authority” and in “interpret[ing] . . . election
laws impermissibly distorted them beyond what a fair reading required, in violation
of Article II.” Id. at 114, 115. Article II requires “respect for the constitutionally
prescribed role of state legislatures.” Id. at 115 (emphasis original). “[I]n a
Presidential election the clearly expressed intent of the legislature must prevail.”
Id. at 120 (emphasis added).
Therefore, the principle that Art. II, § 1, cl. 2 forbids other state actors from
intruding on the Legislature’s prerogative by misinterpreting clearly expressed
statutory directives is clear. The principle of non-intrusion on the legislative domain
applies under both Art. II, § 1, cl. 2 (presidential elections) and Article I § 4
(congressional elections), i.e., under both the Electors and Elections Clauses.
24
Under both the Electors and Elections Clauses it is the state legislature, and
only the state legislature, that is required to “prescribe the details necessary to hold
[federal] elections.” Harkless v. Brunner, 545 F.3d 445, 454 (6th Cir. 2008)
(Elections Clause) (emphasis added). The Harkless court said that “the [Elections]
Clause expressly presses states into the service of the federal government” by
requiring the state legislatures to “prescribe the details” for federal elections and
“[t]his stands in stark contrast to virtually all other provisions of the Constitution,
which merely tell the states ‘not what they must do but what they can or cannot
do.’” Id. (citation omitted). In this unique respect, “the Constitution primarily treats
states as election administrators rather than sovereign entities.” Id. Of course,
when a State’s election procedures are inconsistent with constitutional
requirements a federal court, “has the power to order the state to take steps to bring
its election procedures into compliance with rights guaranteed by the federal
Constitution[.]” Judge v. Quinn, 387 F. App'x 629, 630 (7th Cir. 2010).
3. The district court erred by concluding the Electors Clause requires

no more than that a Presidential election in Wisconsin be conducted
by popular vote
The district court found “defendants’ actions as alleged in the complaint were
undertaken under . . . color of Wisconsin law” (A017), but ruled the President’s
Article II claims failed on the merits because defendants conduct did not violate
Article II. (A018–20.) The district court held that the term “manner” in Art. II, § 1,
cl. 2 refers solely to the “form,” “method” or “mode” (all synonymous terms in the
district court’s view) of election, meaning whether electors are selected “by general
ticket, by districts, [or] by popular vote.” (A018–19.) Thus, the district court opined
25
that failure of state officials to follow legislative direction for administering a
Presidential election could not constitute an Electors Clause violation. See, e.g.,
A019–20.) The district court’s holding regarding the scope of the Electors Clause
presents a pure issue of law, reviewed de novo. Thomas v. Gen. Motors Acceptance
Corp., 288 F.3d 305, 307 (7th Cir. 2002).
The Wisconsin Election Code directs selection of electors “[b]y general ballot at
the general election for choosing the president and vice president of the United
States.” Wis. Stat. § 8.25(1). According to the district court, in a Presidential
election in Wisconsin U.S. Const. art. II, § 1, cl. 2 can only be violated if non-
legislative officials conduct an election through means other than “general ballot”
(i.e., popular vote). (A019–20.) Thus, despite cases giving a broader scope to
“manner” as used in both the Electors and Elections Clauses, the district court ruled
“manner” in the Electors Clause has nothing to do with compliance by State officials
“with underlying rules of election administration.” Id. at 19.
According to the district court, no matter how significantly State officials might
deviate from the “legislative scheme”13 in conducting a Presidential election, there
can be no Electors Clause violation. Therefore, in the district court’s view, the
Electors Clause is a dead letter so long as state statute provides for a general ballot
and the election is ultimately conducted via popular vote, something that has not
been an issue in Wisconsin for more than 150 years. However, the district court’s
holding is inconsistent with the plain meaning of the Electors Clause and well out of
13 Bush v. Gore, 531 U.S. at 113, 114 (Rehnquist, C.J., concurring).
26
the judicial mainstream. By employing a cramped construction of “manner” the
district court’s holding threatens to exacerbate the problem of state executive
branch and administrative officials substituting their judgment for that of the state
legislature when administering Presidential elections. Accordingly, reversal is
required.
i. Plain Meaning of “Manner” As Used in the Electors Clause
The term “Manner” has been broadly used to connote a “way of doing
something” since the 13th Century or as the “way something happens” from the mid-
14th Century, according to etymoline.com.14 Noah Webster’s American Dictionary of
the English Language (1828) lists the primary meaning of “manner” as “Form;
method; way of performing or executing.”15 An expansive understanding of “manner”
is also seen in the first law passed by the U.S. Congress after ratification of the U.S.
Constitution, “An Act to regulate the Time and Manner of administering certain
Oaths,” 1 Stat. 23 (1789).16 In this first Act of Congress “manner” encompassed
descriptions or designations: (1) of the persons to whom the oath was to be
administered, (2) of the stations of the persons by whom the oath was to be
administered, (3) of other things that the person “administering the oath” was to do,
including to “cause a record or certificate thereof to be made” and (4) to “record or
14 Available at: https://www.etymonline.com/word/manner.
(Emphasis added) available at:

15
http://webstersdictionary1828.com/Dictionary/Manner.
Available at: http://memory.loc.gov/cgi-

16
bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=146.
27
certify the oath of office,” and (5) of consequences or penalties for failure to take the
oath. Thus, “Manner” referred to a variety of ancillary procedures associated with
the oath of office, not just to whom it was administered. Thus, the district court’s
construction of “Manner” is not supported by the plain meaning of that term at the
time the Constitution was adopted.
ii. Judicial Construction of “Manner” As Used in the Contemporaneously

Adopted Electors and Elections Clauses
Nor is the district court’s construction of “manner” supported by subsequent
usage of that term. The district court’s understanding purports to rest upon Justice
Thomas’ concurring opinion in Chiafalo v. Washington, 140 S. Ct. 2316 (2020).
However, Justice Thomas’ concurrence addressed a different issue entirely from
whether “Manner” includes statutes having to do with administration of a
Presidential election. The Chiafalo case dealt with whether a State may punish a
so-called “faithless elector,” i.e., an elector who at the electoral college does not vote
for the candidate for President for whom the elector is pledged to vote. Justice
Thomas analyzed the term “Manner” contained in Article II solely in the context of
whether it spoke to the post-election punishment of electors, concluding it said
nothing about whether States could punish “faithless electors” and that authority to
punish faithless electors was therefore reserved to the States or people and did not
need to be implied in Article II. Chiafalo, 140 S. Ct. at 2335.
Given that the focus in Chiafalo was on how States treat electors after they are
elected, Justice Thomas’ analysis did not address whether “Manner” as used in
Article II extends to statutes regulating how electors are chosen and to interference
28
with, or rewriting of, such statutes by non-legislative actors. However, Justice
Thomas observed that in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832-33
(1995), the Supreme Court construed “Manner” in the “Elections Clause” to include
“‘a grant of authority to issue procedural regulations,’ [although] not ‘the broad
power to set qualifications’” for office. Chiafalo, 140 S. Ct. at 2330 (Thomas, J.,
concurring).
Thus, Justice Thomas explicitly recognized that under Article I § 4 the term
“Manner” refers to “procedural regulations” the Legislature may adopt in connection
with an election for Senators and Representatives. This is not an anomalous
interpretation of “manner.” The Elections Clause “is broadly worded and has been
broadly interpreted.” Ass’n of Cmty. Orgs. for Reform Now, 56 F.3d 791, 794 (7th
Cir. 1995) (hereafter “ACORN”). For instance, “the ‘Manner’ of holding elections has
been held to embrace the system for registering voters.” Id. at 793. A number of
other cases under the Elections Clause also interpret “manner” to encompass
legislatively adopted rules pertaining to the administration of federal elections.17
There is no reason to believe that “Manner” should be broadly interpreted to
encompass determination of procedural regulations for elections for Senators and
Representatives under Article I but not encompass election administration rules in
a Presidential election under Article II of the same Constitution.
17 See, e.g., U.S. Term Limits, Inc., 514 U.S. at 833-834 (Elections Clause is a
“grant of authority to issue procedural regulations”); Judge v. Quinn, 612 F.3d 537,
552 (7th Cir.), opinion amended on denial of reh'g, 387 F. App'x 629 (7th Cir. 2010)
(“The notion that state legislatures play an essential role in promulgating the law
that governs congressional elections . . . has deep roots.”); ACORN, 56 F.3d at 793-
94.
29
Therefore, this Court should reverse the holding of the District that the Electors
Clause cannot apply to protect from administrative or executive branch usurpation
legislatively adopted Election Code provisions which describe how a statewide
election for President is to be administered. (A018–20.)
4. The district court erred through alternative holdings that the WEC’s
guidance was authorized by the Legislature and/or that any
departures were not material or significant
The district court found, alternatively, that even if “Manner” includes aspects of
election administration that Defendants administered Wisconsin’s 2020
Presidential election as directed by the Wisconsin Legislature. (A020). The court
said “[f]irst, the record shows defendants acted consistently with, and as expressly
authorized by, the Wisconsin Legislature. Second, their guidance was not a
significant or material departure from legislative direction.” Id.
The district court identified four reasons guidance by the WEC was purportedly
authorized by the Legislature:
(1) the Legislature “authorized the commission to issue guidance to help
election officials…interpret…and…court decisions” (citing Wis. Stat.
§ 5.05(5t)),
(2) the Legislature authorized the Commission to issue advisory opinions
(citing Wis. Stat. § 5.05(6a)),
(3) the Commission is authorized to promulgate rules (citing Wis. Stat. §
5.05 (1)(f)), and
(4) the Commission has responsibility for the “administration of election
laws (citing Wis. Stat. § 5.05 (1)).

30
As the first prong of the trial court’s alternative holding is based on an
interpretation of law, this Court’s review is plenary. Thomas, 288 F.3d at 307.
As the district court acknowledged, the WEC directives challenged by the
President are “guidance” documents (A021), not advisory opinions or rules that
went through an administrative rule making process. Nor can guidance documents
be legitimately regarded as the “administration of election laws” (A021) to the
extent such guidance conflicted with election laws. Guidance documents “are not the
law, they do not have the force or effect of law, and they provide no authority for
implementing or enforcing standards or conditions.” Serv. Employees Int'l Union,
Local 1 v. Vos, 946 N.W.2d 35, 67 (Wis. 2020). Guidance documents “impose no
obligations, set no standards, and bind no one.” Id. Functionally, and as a matter of
law, they are entirely inert.” Id. Therefore, as a clear matter of law the Wisconsin
Legislature did not authorize the WEC to issue guidance inconsistent with State
Election Law. The district court does not suggest that the WEC was delegated
authority to override the Election Code and none of the statutes cited by the district
court suggest the WEC was given such power.
Therefore, the first prong of the district court’s alternative holding must fail if
the President demonstrates that the guidance issued by the Commission conflicted
with the Election Code. The President’s analysis of why Commission guidance
conflicted with the Wisconsin Election Code is set forth in the sections immediately
below. Again, the question of whether the Commission’s guidance deviated from the
31
Code raises a pure question of law subject to plenary consideration. Thomas, 288
F.3d at 307.
The second prong of the Court’s alternative holding is that the Commission’s
“guidance was not a significant or material departure from legislative direction.”
(A020). The district court asserts:
[T]he record does not show any significant departure from the
legislative scheme during Wisconsin’s 2020 Presidential election. At
best, plaintiff has raised disputed issues of statutory construction on
three aspects of election administration. While plaintiff’s disputes are
not frivolous, the Court finds these issues do not remotely rise to the
level of a material or significant departure from [the] Wisconsin
Legislature’s plan for choosing Presidential Electors.
(A021).
On their face, questions about whether departures by WEC and other state
actors were material or significant might appear to present mixed questions of fact
in law, as to which “the clear-error standard governs.” Thomas, 288 F.3d at 307.
Considering such questions outside the constitutional context, a reviewing court
would “ask not whether the ruling was erroneous but whether it was clearly
erroneous.” United States v. Frederick, 182 F.3d 496, 499 (7th Cir. 1999).
However, in the context of important constitutional questions courts will apply
de novo review to mixed questions of fact and law in order to ensure that
constitutional standards develop in a clear, consistent and coherent manner. See,
e.g., Thomas, 288 F.3d at 307 (noting plenary review of mixed questions of fact and
law can be appropriate in constitutional cases); United States v. Meyer, 157 F.3d
1067, 1074 (7th Cir. 1998) (“We review the district court’s decision that a defendant
32
has failed to present sufficient evidence to become entitled to a jury instruction on a
theory of defense de novo.”); see also Bush v. Gore, 531 U.S. at 104-111 (while no
standard of review was expressly articulated, the Court did not show deference to
the findings of the Florida Supreme Court). Therefore, this Court should undertake
de novo review of all mixed questions of fact and law, including whether the
deviations from the Wisconsin Election Code were material or significant.
Furthermore, in the unique context of Article II a significant departure from the
State Election Code must be considered material per se, requiring finding a
constitutional violation without proof of how many ballots were impacted or
whether the outcome of the election would have changed had the violation not
occurred. The failure to adhere to constitutional standards in a Presidential election
impugns the reliability of the election structure itself, in a manner analogous to
structural error in a criminal trial. See, e.g., Powers v. Ohio, 499 U.S. 400, 411-12
(1991); Crittenden v. Chappell, 804 F.3d 998, 1003 (9th Cir. 2015) (“it is well
established that a Batson violation is structural error”).18
For instance, in Bush v. Gore, the Court made no finding as to how many ballots
would have been impacted as a result of the equal protection violation identified
and did not find that the equal protection violation inherent in the recount process
ordered by the Florida Supreme Court would have changed the outcome of the
18 The idea that certain rights are sufficiently important to organized society that
the violation of those rights will be declared in a lawsuit even without proof of
defined damages holds in other areas as well. See Carey v. Piphus, 435 U.S. 247,
266 (1978) (holding the “absolute” right to procedural due process warrants
awarding nominal damages without proof of actual injury)
33
election. As the Court said, “[w]hen the state legislature vests the right to vote for
President in its people, the right to vote as the legislature has prescribed is
fundamental[.]” Bush v. Gore, 531 U.S. at 104. Therefore, an Article II violation is
established when the fundamental right to vote for President “as the legislature has
prescribed” is violated, without need to show that that the violation established
would have changed the outcome of the election.19 In any case, the deviations from
the Election Code in this case were significant by any reasonable measure.
5. The district court erred by concluding the adoption of absentee

ballot “drop boxes” by Wisconsin election administrators did not
violate the Electors Clause
i. The district court’s order barely references absentee ballot drop boxes
The district court findings only note the WEC’s August 19, 2020, guidance on
drop boxes and no Code sections. (A008). This is not surprising as drop boxes are
not referenced in the Election Code.
ii. Absentee ballot drop boxes are inconsistent with the legislative plan for voting
absentee ballots in Wisconsin
The district court did not analyze whether absentee ballot drop boxes are
consistent with the Election Code. They are not.20
Proving fraudulently cast ballots is not a necessary element of an Article II

19
claim. An Article II violation is established upon proof that the direction of the
Legislature was not followed.
See Trump, 2020 WL 7331907 at *20 (Roggensack, C.J, dissenting) (“[D]rop

20
boxes are not found anywhere in the absentee voting statutes [and] are nothing
more than another creation of WEC to get around the requirements of Wis. Stat. §
6.87(4)(b)1.”)
34
In a “mandatory” section detailing the absentee voting procedure, the Wisconsin
Election Code specifies exactly where and how absentee ballots may be cast and
deposited: “The envelope [containing the absentee ballot] shall be mailed by the
elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.”
Wis. Stat. § 6.87(4)(b)1; see Olson v. Lindberg, 85 N.W.2d 775, 781 (Wis. 1957)
(failure to properly deliver ballots rendered them uncounted).
The Legislature has made a single accommodation, providing for alternate sites
to which voters may return absentee ballots, but those alternate sites “shall be
staffed by the municipal clerk or the executive director of the board of election
commissioners, or employees of the clerk or the board of election commissioners.”
Wis. Stat. § 6.855(3) (emphasis added). Moreover, the alternate sites “shall be
located as near as practicable to the office of the municipal clerk or board of election
commissioners,” and “no site may be designated that affords an advantage to any
political party.” Wis. Stat. § 6.855(1). Likewise, Wis. Stat. § 7.15(2m) provides, “I]n
a municipality in which the governing body has elected to an establish an alternate
absentee ballot site under s. 6.855, the municipal clerk shall operate such site
as though it were his or her office for absentee ballot purposes and shall ensure
that such site is adequately staffed.” (Emphases added).
There are no options in the Election Code for returning an absentee ballot other
than by mail or “deliver[y] in person, to the municipal clerk issuing the ballot or
ballots.” Wis. Stat. § 6.87(4)(b)1. Delivery in one of these two manners is mandatory
and non-compliance means the absentee ballot “may not be counted.” Wis. Stat. §
35
6.84(2). As explained above, the location of such delivery whether by mail or in
person is a physical office (either the clerk’s office or an alternate absentee ballot
site) required to be “adequately staffed” with “employees of the clerk or the board of
election commissioners.” This process ensures the security of ballot delivery and
provides for a clear chain of custody.
Upon receipt of an absentee ballot the clerk has two options. “If a municipal
clerk receives an absentee ballot with an improperly completed certificate or with
no certificate, the clerk may return the ballot to the elector” if there is sufficient
time for the elector to correct the defect and return the ballot before 8 p.m. on
election day.” Wis. Stat. § 6.87(9). If the clerk does not return the absentee ballot for
correction of the certificate(s) by the voter, “the clerk shall enclose it, unopened, in
a carrier envelope which shall be securely sealed and endorsed with the name and
official title of the clerk, and the words “This envelope contains the ballot of an
absent elector and must be opened in the same room where votes are being cast at
the polls during polling hours on election day or, in municipalities where absentee
ballots are canvassed under s. 7.52, stats., at a meeting of the municipal board of
absentee ballot canvassers under s. 7.52, stats.” Wis. Stat. § 6.88(1).
The formality of the statutory absentee ballot receipt and securing process
which occurs in the clerk’s office or at an alternate absentee ballot site is striking,
making clear the Legislature’s intent was that absentee ballots, whether mailed or
delivered in person, only be received in an office staffed by trained employees who
would immediately place ballots in a “securely sealed” “carrier envelope” to be
36
further “endorsed with the name and official title of the clerk” and a statement that
the envelope would only be opened at the place where votes are cast on election day.
These provisions make clear the Legislature intended absentee ballots only be
received in an office where the statutory formalities could be observed and a tight
chain of custody maintained.
The clarity of these procedures is why it is beyond reasonable dispute that un-
manned absentee ballot drop boxes are inconsistent with the Legislature’s strict
processes for handling absentee ballots. Certainly, the Legislature never intended
that absentee ballots would merely be dropped off in un-manned boxes, or deposited
in municipal utility bill payment slots or library book depositories where the
absentee ballots mingled with books or bills, or that a ballot would be pushed
through a mail slot in the door of a city hall where it might lay on the floor until
whomever happened by picked it up and (hopefully) passed it along.21 Yet, this is
exactly what happened in Wisconsin in the 2020 Presidential election with a mish-
mash of multi-use slots, un-manned ballot boxes and, in the City of Madison,
hundreds of so-called “human drop boxes” (most not even clerk’s office employees) in
City Parks weeks before in office absentee balloting was even permitted to begin, all
due to the erroneous advice of the WEC.
iii. The WEC’s endorsement of absentee ballot drop boxes
As discussed on pages 15–16 supra, the Mayors of Wisconsin’s five largest cities
obtained funding from an out of state not-for-profit corporation for absentee ballot
21 ECF Nos. 117-18, -19, -20, -21, -22, -23, -48, -71, p. 37 (Repurposing Options).
37
drop boxes, among other things.22 Only after receiving funding did WEC begin
issuing guidance that contradicted the Legislature’s directive regarding the
handling of absentee ballots. (ECF 117-13, p. 1.)
iv. Absentee ballot drop boxes in Wisconsin were a late breaking but major
development in the Wisconsin election landscape
Such was the frenetic pace of drop box addition in Wisconsin in the late summer
and fall that by the November 3 election Wisconsin had more than 500 drop boxes
and multi-use slots in which absentee ballots were being deposited,23 including, of
course, in the five largest cities which had gotten more than a two-month head start
in addition to the generous CTCL funding. (See discussion supra, pp. 15–16.)
v. Absentee ballot drop boxes had a material impact on the 2020 Presidential
election in Wisconsin
Drop boxes were an entirely new method of balloting in Wisconsin, expanding
the ways an absentee ballot can be voted, while making absentee ballots more
vulnerable and less secure. There is no dispute that no fixed standards guided the
use of drop boxes. Thus, drop boxes in the 2020 Presidential election collided with
the Legislature’s starting point for absentee balloting in Wisconsin, that it “must be
carefully regulated to prevent the potential for fraud or abuse.” Wis. Stat. § 6.84(1).
Drop boxes lacked many safeguards the Legislature is careful to employ to
protect aspects of the voting process actually covered in the Election Code, such as
22 Id., p. 10.
23 ECF 117-18.
38
requirements for bi-partisan oversight,24 requirements for public notice25 and public
access.26 In fact, a federal fact sheet on which WEC’s guidance was based
recommends “bipartisan teams to be at every ballot drop-off location precisely when
polls close”27 but WEC deleted this recommendation from its guidance.28
Moreover, the manner in which drop boxes and multi-use slots were used
around the State gave potentially thousands of individuals not employed in a clerk’s
office (and therefore not trained in election standards or duty bound to be non-
partisan) access to absentee ballots, something that is anathema to the carefully
crafted absentee balloting provisions in the Election Code. The un-manned drop
boxes clearly opened the absentee balloting process up to the very concerns about
fraud and abuse the Legislature was concerned about, including the unsavory
practice of ballot harvesting and a greater potential for “overzealous solicitation of
absent electors who may prefer not to participate in an election” as well as the
possibility of “undue influence on an absent elector . . . or . . . similar abuses.”29 Un-
manned ballot drop boxes are more vulnerable to all such concerns
24 See, e.g., Wis. Stat. §§ 6.855(1), 6.875(4)(a), 6.875(7), 6.88(3)(b), 7.15(1)(k),

7.20(2), 7.30(2), 7.41(4)
25 See, e.g., Wis. Stat. §§ 6.875(4)(a), 7.41, 7.515(3)(a).
26 Id.
27 ECF 117-15, p. 5.
28 ECF 117-13.
29 Wis. Stat. § 6.84(1).
39
Furthermore, as the Legislature did not direct an orderly roll-out of absentee
ballot drop boxes, and the largest cities in the State clearly got a head start, there
was significant potential for this new voting method to be used to partisan
advantage, to the detriment of areas of the State that may not have been
adequately funded or alerted as early to the new vote casting method. These are all
reasons it is important the Legislature be in charge of the introduction of a
significant new method of gathering absentee ballots, but the Legislature was not
involved, in clear violation of Article II.
There is no doubt the impact of this new absentee balloting method was
significant. Approximately 75,000 – 85,000 known absentee ballots were cast in
direct contravention of the Wisconsin Election Code, and those numbers represent
only 30 of the more than 500 illegal absentee ballot drop boxes in the State, and all
in a Presidential election decided by less than 21,000 votes. (ECF 127 pp. 4–5 ¶¶
13–14.) Any way that this unlawful and unconstitutional program is viewed it was
material.
vi. So-called “human drop boxes” in the City of Madison had a material impact
on the 2020 Presidential election
Another example why the drop box program initiated by the WEC was
problematic was the so-called “Democracy in the Park” events which the City of
Madison held on September 26 and October 3, 2020, well outside the two week
period before election day when in-person absentee voting is permitted by Wis. Stat.
§ 6.86(1)(b).30 These events, which primarily involved volunteer poll workers (not
30 ECF 117-71, p. 103.

40
clerk’s office employees) collecting absentee ballots at some 200 city parks in
Madison were justified through the fiction that the poll workers who collected the
ballots (clearly not promptly placing them in the carrier envelopes provided for in
Wis. Stat. § 6.88(1), as video from the event, which is in the record, shows31) were
allegedly “human drop boxes.”32 A total of 17,271 absentee ballots were collected in
this non-statutory manner33 in violation of Wis. Stat. § 6.87(4)(b)1 and consequently
“may not be counted [and] . . . may not be included in the certified result of any
election.” Wis. Stat. § 6.84(2).34 Thus, the WEC’s improper drop box guidance
spawned another unlawful method of collecting absentee ballots that was also
clearly material under any measure.
The “Democracy in the Park” – “human drop box” events in Madison also
demonstrated the danger that newly introduced voting methods not sanctioned by
the Legislature can be turned for partisan ends. Public service announcements for
these events which were proudly “created by, planned by, staffed by and paid for by
31 ECF 117-55.
32 ECF 127, p. 5, ¶ 16.
33 ECF 127, p. 5, ¶ 15.
34 The “may not be counted” requirement was not followed by election officials on
election day or in the recount. Nevertheless, the language establishes the
materiality of the deviations in the view of the Legislature.
41
the @CityofMadison Clerk’s Office”35 were paid for by the Biden for President
Campaign and included the former Vice President’s voice and tag line.36
6. The district court erred by concluding that guidance issued by the

WEC authorizing clerks to alter absentee ballot witness
certifications did not violate the Electors Clause
i. The Wisconsin Election Code bars clerks from altering absentee ballot witness
certificates in any way
As explained above, the combined effect of Wis. Stat. §§ 6.87(9) and 6.88(1) is to
make clear that clerks have only a single option to initiate correction of a defective
absentee ballot certification and that is to return the absentee ballot and envelope
to the voter for correction. “[T]he express mention of one matter excludes other
similar matters not mentioned.” FAS, LLC v. Town of Bass Lake, 733 N.W.2d 287,
297 (Wis. 2007). Thus, the WEC’s shifting guidance which has encouraged clerks to
alter absentee ballot witness certificates is contrary to the Election Code.
ii. Since 2016 the WEC has issued shifting guidance on the authority of clerks to
alter absentee ballot witness certificates
About two weeks before the 2016 Presidential election, on October 18, 2016, the
WEC issued what it characterized as a mandatory instruction, telling clerks they
“must take corrective actions in an attempt to remedy a witness address error.” 37
This directive was not supported in any way by the Election Code. Moreover, clerks
35 ECF 117-49.
36 ECF 117-64.
37 ECF 117-72, p. 4 (emphasis original).
42
were instructed they were “not required to contact the voter before making that
correction directly to the absentee certificate envelope.”38
The WEC’s 2016 eve of election instruction to clerks to tamper with witness
certificates was a serious error. The witness certificate is an important aspect of the
Legislature’s effort to protect the integrity of absentee voting, which is why the
certificate is completed “subject to the penalties of s. 12.60(1)(b), Wis. Stats., for
false statements.” Wis. Stat. § 6.87. The certificate is part of the evidentiary basis
for a poll inspector’s decision whether to allow a ballot envelope to be opened so that
the absentee ballot can be counted. Wis. Stat. § 6.88(3)(a). An absentee ballot is only
supposed to be opened if “the inspectors find that the certification has been properly
executed.” Id. “When the inspectors find that a certification is insufficient . . . the
inspectors shall not count the ballot.” Wis. Stat. § 6.88(3)(b). In fact, the only time
the Wisconsin Election Code authorizes an election worker to write upon an
absentee ballot envelope is when the ballot is not counted. Id. Only after that
determination, “[t]he inspectors shall endorse [the] ballot not counted on the back,
‘rejected (giving the reason)’.” Wis. Stat. § 6.88(3)(b). Only uncounted envelopes are
to be written on, and even then only “on the back,” never on the witness certificate
itself.
As these statutes confirm, the witness certificate is a key piece of the
evidentiary chain designed by the Wisconsin Legislature to protect the integrity of
absentee balloting. That is why Wis. Stat. § 6.87(6d) states unequivocally, “[i]f a
38 Id.
43
certificate is missing the address of a witness, the ballot may not be counted.”
Further, Wis. Stat. § 6.84(2) underscores the Legislature’s unambiguous and rather
emphatic message that alteration of a witness certificate is absolutely forbidden. A
ballot missing the address of a witness “may not be included in the certified result
of any election.” Wis. Stat. § 6.84(2). Thus, the WEC’s 2016 instruction for clerks to
engage in witness certificate tampering was a serious deviation from the Legislative
plan for absentee balloting.
There is no uncertainty regarding what information the statutory witness
address requirement is seeking. The WEC has consistently interpreted the required
information as “the street number and street name (or P.O. Box) and the
municipality of the witness.”39
While the 2016 instruction for clerks to alter witness certificates was far afield
from the Election Code, President Trump had no occasion to challenge it because he
won the election in 2016 and therefore could not have brought a challenge as an
aggrieved party. Nor was President Trump a candidate in any election in Wisconsin
between 2016 and 2020.
In 2020 the guidance given by the WEC continued to include erroneous
instructions to clerks to try to track down the absentee voter to get their assistance
to correct defective certificates (rather than either mailing an insufficient envelope
back to the voter or, if an envelope was retained by the clerk, protecting the chain of
custody of the received absentee ballot by placing it in a sealed carrier envelope as
39 ECF 117-72, p. 5 (2016); ECF 117-36 (2020).
44
directed by the statute discussed above).40 However, WEC guidance in 2020 did not
contain the earlier egregious direction to clerks to complete witness certificates
without the involvement or knowledge of the voter, that is, until October 19, 2020.
iii. On October 19, 2020, the WEC strikes again, altering guidance and endorsing
certificate alterations undertaken without knowledge of the voter
On October 19, 2020, for the first time in 2020, the WEC issued the startling
pre-election directive to clerks that:
The witness can appear without the voter to add their signature or
address…[T]he clerk should attempt to resolve any missing witness
address information…through reliable information (personal
knowledge, voter registration information, through a phone call with
the voter or witness). The witness does not need to appear to add a
missing address.41
This is all absolutely contrary to the Election Code. However, the worst part is
that this directive entirely takes the voter out of the picture. The directive makes
clear the clerk may engage in alteration of the witness certificate based on “personal
knowledge.” Nor need the witness even be present. Thus, a witness certificate can
be changed from invalid to allegedly valid solely by action of a clerk who was not
even present when the ballot was marked and the certificates executed. Such
actions amount to tampering and undermines the reliability, integrity and
evidentiary value of the document. The clerks’ actions are clearly contrary to the
intent of the Legislature.
ECF 117-72, pp. 15-17; ECF 117-72, pp. 33-35; ECF 117-36; ECF 117-72, pp.
40
139-140; ECF 117-71, pp. 1-3; ECF 117-71, pp. 80-81.

41 ECF 117-35 (emphasis added).
45
iv. The WEC’s October 19, 2020, guidance on altering absentee ballot witness
certificates had a material impact on the 2020 Presidential election
Defendants ignored the mandatory requirement Code to not count an
incomplete absentee ballot to the extent the Executive Director of the Milwaukee
Elections Commission, Claire Woodall-Vogg announced, “that ballot counters who
happened on a ballot without a witness address could go to a computer, look the
address up and insert it on the ballot, but there was no mention of any procedure to
verify the address.”42 Ms. Woodall-Vogg instructed another ballot counter at the
central count facility to even count many absentee ballots in envelopes that had no
signature on the witness signature line.43 The Election Code provides that it is
mandatory to not count such ballots and that they may not be included in any
certified election results. Wis. Stat. § 6.84(2). These deviations were material as the
plain language of the Code confirms and yet the WEC endorsed not following the
Election Code and clerks complied.
7. The district court erred by concluding that guidance issued by the

WEC altering the “indefinitely confined” status of voters did not
violate the Electors Clause
i. The Wisconsin Election Code limits the “indefinitely confined” exception to

four physical conditions
An initial request for absentee ballot requires photo identification, except for
those who register as “indefinitely confined” or “hospitalized.” Wis. Stat. §
6.86(2)(a), (3)(a). Registering for indefinite confinement requires certifying
42 B037.
43 B039.
46
confinement “because of age, physical illness or infirmity or [because the voter] is
disabled for an indefinite period.” Id. § 6.86(2)(a).
ii. The Clerks in Dane and Milwaukee Counties explicitly advised that all voters
could use indefinite confinement in order to avoid Wisconsin’s photo
identification law
On or about March 25, 2020, the clerks in Dane and Milwaukee counties issued
social media posts advising that Wisconsin voters were justified by the Covid-19
pandemic in claiming indefinitely confined status and in so doing could avoid the
necessity of producing photo identification before obtaining an absentee ballot.44 On
March 27, 2020, the Republican Party of Wisconsin filed a petition for leave to
commence an original action with the Wisconsin Supreme Court to address this
flagrant effort to undermine Wisconsin’s photo identification law by advising voters
to apply for indefinite confinement status to avoid having to produce photo
identification.
iii. On March 29, 2020, the WEC issued inaccurate guidance concerning
indefinite confinement in conflict with State law
Two days later the WEC issued guidance providing in part, “[d]uring the
current public health crisis, many voters of a certain age or in at-risk populations
may meet the standard of indefinitely confined until the crisis abates.”45 This
guidance, which is not tied to confinement based upon any of the four physical
conditions identified in Wis. Stat. § 6.86(2)(a) is contrary to the Election Code.
44 ECF 127, ¶¶ 23-26.

45 ECF 117-2.
47
The WEC further instructed that [c]lerks…may not request or require proof.”46
This aspect of the guidance is not found anywhere in the Election Code and it
seriously undermined the photo identification requirement by advising anyone who
read it that a claim of indefinite confinement did not require proof and would never
be challenged.
iv. On March 31, 2020, the Wisconsin Supreme Court reprimanded the Clerks in
Dane and Milwaukee Counties
Two days later, the Supreme Court issued a short order approving two more
innocuous paragraphs in the same WEC guidance and ordering the Dane County
Clerk not to post advice inconsistent with those paragraphs. The Court said nothing
about the problematic aspects of the WEC guidance referred to above, and the
Wisconsin Republican Party continued the original action seeking additional relief
from the Wisconsin Supreme Court to clarify the indefinite confinement issue.
v. The Wisconsin Supreme Court waited until December 14, 2020, to issue its
final decision, leaving in place the WEC’s erroneous guidance throughout the
Presidential election
Finally, on December 14, 2020, a month and a half after the Presidential
election, the Court issued its order finding that neither the pandemic nor a stay at
home order made a voter indefinitely confined.47
46 ECF 117-2.
47 Jefferson, 2020 WL 7329433
48
vi. Wisconsin’s failure to follow the clear direction of the Wisconsin Legislature on
the “indefinitely confined” exception had a material impact on the 2020
Presidential election in Wisconsin
As a consequence of the foregoing, the WEC’s inaccurate “indefinitely confined”
guidance continued to impact the Presidential election in Wisconsin and
Republicans were effectively barred from challenging the guidance in light of the
long pending Wisconsin Supreme Court case. As of November, 2020 some 240,000
requests for absentee ballots based on indefinite confinement had been received, in
comparison to only 66,611 requests in the 2016 Presidential election.48
B. The Equal Protection Clause
Amendment Fourteen, Section 1, the “Equal Protection Clause,” to the United
States Constitution provides, in relevant part:
No State shall…deny to any person within its jurisdiction the equal

protection of the laws.
1. The district court erred by finding Plaintiff waived his claim under
the Equal Protection Clause
The district court found that “[w]hile counsel purported to reserve [an] Equal
Protection claim, the complaint offers no clue of a coherent Equal Protection theory
and plaintiff offered neither evidence nor argument to support such a claim at trial”
holding that it was “therefore abandoned.” (A001 n.1). Waiver constitutes a mixed
question of fact and law, necessitating review under the clearly erroneous standard.
See Thomas, supra.
48 ECF 127, ¶¶ 18-19.
49
The Complaint alleges an equal protection claim based on the lack of standards
associated with the absentee ballot drop boxes. (See B046–51 ¶¶ 193–203.) As
specified at paragraphs 33-34, the complaint, which contained citations to many
legal authorities, served as Plaintiff’s opening brief. Paragraph 199 of the
Complaint recited that “lack of uniform standards regarding the handling, security
and openness of the process to the public in connection with the new use of un-
manned, absentee ballot drop boxes, render[ed] them constitutionally suspect under
the Equal Protection” clause. (B048.) In support of this argument the Complaint
identifies “Bush, 531 U.S. at 109 (observing that the election recount process at
issue there was ‘inconsistent with the minimum procedures necessary to protect the
fundamental right of each voter’ [and that] ‘there must be at least some assurance
that the rudimentary requirements of equal treatement and fundamental fairness
are satisfied.’” (B048).
Opposing counsel understood an equal protection claim had been raised as he
addressed it in his argument at the hearing.49 Plaintiff’s counsel also discussed the
lack of standards related to the drop boxes in some detail in argument at the
hearing.50 Therefore, the equal protection claim was not abandoned.
49 Tr. 103:20–104:16.
50 Tr. 28:15–31:14.
50
2. The district court erred by failing to find that standard-less, non-

uniform implementation of absentee ballot drop boxes violates Equal
Protection
For reasons similar to the concern in in Bush v. Gore that the lack of uniform
standards in a statewide recount violated Equal Protection, the lack of uniform
standards in rolling out Wisconsin’s statewide absentee ballot drop box program is
problematic under the Equal Protection Clause. Equal Protection is concerned with
the prospect for “debasement or dilution”51 of votes, which can occur when votes are
lost due to lack of security standards. Just as there must be “minimum procedures
necessary to protect the fundamental right of each voter in the special instance of a
statewide recount”52 there must be “minimum [security] procedures” in place to
protect the fundamental right of each voter to not have their vote diluted when the
State employs a new method of voting. Similar to the ultimate concern in Bush v.
Gore, the drop boxes and multi-use slots in Wisconsin are “not well calculated to
sustain the confidence that all citizens must have in the outcome of elections. The
State has not shown that its procedures include the necessary safeguards.”53
Therefore, the Court should find that the standard-less, procedure-less roll-out of a
new drop box method of absentee voting in Wisconsin violated the Equal Protection
rights of Wisconsin voters and harmed candidates by undermining confidence in the
Bush v. Gore, 531 U.S. at 105, citing Reynolds v. Sims, 377 U.S. 533, 555
51
(1964).
52 Bush v. Gore, 531 U.S. at 109.
53 Id.
51
outcome of the election and likely diluting or debasing votes attempted to be cast for
the candidate.
C. The President’s Requested Remedy
1. Declaratory relief is appropriate
The Declaratory Judgment Act provides:
[A]ny court of the United States…may declare the rights and other
legal relations of any interested party seeking such declaration,
whether or not further relief is or could be sought. Any such
declaration shall have the force and effect of a final judgment or decree
and shall be reviewable as such.
28 U.S.C. § 2201.
“[T]he Declaratory Judgment Act does not ‘extend’ the ‘jurisdiction’ of the
federal courts.” Medtronic, Inc. v. Mirowski Family Ventures, LLC, 571 U.S. 191,
197 (2014). Rather, the Declaratory Judgment Act, “place[d] a remedial arrow in the
district court’s quiver.” Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995).
Each State is delegated authority to cast electoral votes for president in 2020,
but only if 3 conditions are met:
1) a statewide vote for electors is held on Nov. 3; (required by 3 U.S.C. § 1)
2) that election must be held in the manner directed by the state
legislature; (required by U.S. Const. art. II, § 1, cl. 2) and
3) the electors must cast their votes on Dec. 14 (required by 3 U.S.C. § 7).
If a State fails to meet any one of these conditions, it cannot cast its electoral
votes for President and Vice President, just as in any other situation, public or
private, the result reached by the agent is invalid if the conditions of the delegation
are not honored.
52
In its discussion of standing, the district court properly held:
If [President Trump] were to succeed in proving that defendants

violated the Electors Clause, causing Wisconsin’s Presidential Electors
to be appointed in a manner inconsistent with the Wisconsin
Legislature’s directives, and depriving plaintiff of his opportunity to
win those Presidential Electors, he should have the ability (and the
standing) to enforce the Constitution’s plain terms in federal court.
(A013).
The district court was correct. The holding regarding standing applies going
forward—having found standing, the district court was empowered to declare
President Trump’s rights and other legal relations.
As set forth above, President Trump has demonstrated the Wisconsin
presidential election was not conducted in the manner prescribed by the Wisconsin
legislature. Consequently the election did not satisfy the Electors Clause. President
Trump is entitled to a declaratory judgment that the election was not conducted in
a lawful manner and therefore electoral votes cast on December 14 as a result of the
flawed election are not valid.
2. Injunctive relief is appropriate
Following a declaration that the November 3, 2020 election was invalid,
Wisconsin is not left without any electoral votes. The Electoral Count Act contains a
savings provision permitting a state legislature to appoint electors in the event its
state fails to make an election (or when the election was unconstitutional and void):
Whenever any State has held an election for the purpose of choosing
electors, and has failed to make a choice on the day prescribed by law,
the electors may be appointed on a subsequent day in such a manner
as the legislature of such State may direct.
3 U.S.C. § 2.
53
The date that has “ultimate significance” under federal law is “the sixth day of
January,” the date set by 3 U.S.C. § 15 on which “the validity of electoral votes” is
determined by Congress. Bush v. Gore, 531 U.S. 98, 144 (2000) (Ginsburg, J.,
dissenting); see also Laurence H. Tribe, Comment: eroG .v hsuB and Its Disguises:
Freeing Bush v. Gore From Its Hall of Mirrors, 115 Harv. L. Rev. 170, 265-66 (2001)
(noting that the only real deadline for a State’s electoral votes to be finalized is
“before Congress starts to count the votes on January 6”).
The Wisconsin Elections Commissions championed Justice Ginsburg’s reliance
on January 6 as the date of ultimate significance earlier this month in the
Wisconsin Supreme Court. (ECF No. 109-1, pp. 16–17, WEC Response filed in Case
No. 20AP1971-OA on Dec. 1, 2020.) The Wisconsin Elections Commission argued
that Wisconsin’s ten electoral votes can be certified “after the electors have
convened and cast their electoral votes,” and before January 6. (ECF No. 109-1, p.
15.)
As the district court correctly held:
[A] state governor may issue a certificate of ascertainment based on

the canvassing and then a subsequent certificate of “determination”
upon the conclusion of all election challenges. 3 U.S.C. §6. The
certificate of “determination” notifies the U.S. Congress of the state
decision when Congress convenes on January 6 to count the electoral
votes. Indeed, the WEC acknowledged that plaintiff’s claims are not
moot in a filing with the Wisconsin Supreme Court.
(A015).
Consistent therewith, President Trump requested the district court issue
injunctive relief ordering Governor Evers to issue a certificate of determination
54
consistent with, and only consistent with, the appointment of electors by the
Wisconsin legislature.
CONCLUSION
Administrative officials should not subvert the Legislature’s exclusive
constitutional authority to determine the manner of the election. Doing nothing will
only encourage partisans to violate the laws. Citizens’ trust in governmental
institutions, and the belief in transparent and fair elections will continue to erode.
For these reasons, this Court should reverse the district court and remand with
instructions to enter a declaratory judgment and injunction requiring Governor
Evers to issue a certificate of determination consistent with, and only consistent
with, the appointment of electors by the Wisconsin legislature.
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 13,994 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii) as verified through Microsoft Word’s
“Word Count” function.
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and Circuit Rule 32(b) and the type style requirements of Fed. R. App. P.
32(a)(6) because this brief has been prepared in a proportionally spaced typeface
using Microsoft Office Word 2013 in 12-point Century Schoolbook font.
55
CERTIFICATE OF SERVICE
I hereby certify that on December 16, 2020, I electronically filed the foregoing
document with the Clerk of the Court for the United States Court of Appeals for the
Seventh Circuit by using the CM/ECF No. system. Participants in this case who are
registered CM/ECF No. users will be served by the CM/ECF No. system.
/s/ William Bock, III
William Bock III

KROGER, GARDIS & REGAS, LLP
Indianapolis, IN 46204
Phone: (317) 692-9000
Attorneys for Plaintiff-Appellant Donald J.

Trump
56
CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULE 30(d)
The undersigned counsel hereby certifies that the Short Appendix to this
Brief includes all materials required by Circuit Rule 30(a) and that the separately
filed Appendix includes all materials required by Circuit Rule 30(b)
DATE: DECEMBER 16, 2020
Respectfully Submitted,
/s/ William Bock, III

William Bock III, Indiana Attorney No. 14777-49
James A. Knauer, Indiana Attorney No. 5436-49
Kevin D. Koons, Indiana Attorney No. 27915-49
111 MONUMENT CIRCLE, SUITE 900
INDIANAPOLIS, IN 46204
PHONE: (317) 692-9000
Counsel for Plaintiff-Appellant Donald J. Trump,

candidate for President of the United States
CIRCUIT RULE 30(A) APPENDIX
TABLE OF CONTENTS
District Court Decision and Order, Dec. 12, 2020 [ECF 134] ..............................A001
District Court Judgment, Dec. 12, 2020 [ECF 135] .............................................A024

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
_____________________________________________________________________________
DONALD J. TRUMP,
Plaintiff,
v.
Case No. 20-cv-1785-BHL
The WISCONSIN ELECTIONS COMMISSION, ET AL.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER

______________________________________________________________________________
This is an extraordinary case. Plaintiff Donald J. Trump is the current president of the
United States, having narrowly won the state of Wisconsin’s electoral votes four years ago,
through a legislatively mandated popular vote, with a margin of just over 22,700 votes. In this
lawsuit, he seeks to set aside the results of the November 3, 2020 popular vote in Wisconsin, an
election in which the recently certified results show he was defeated by a similarly narrow margin
of just over 20,600 votes. Hoping to secure federal court help in undoing his defeat, plaintiff
asserts that the defendants, a group of some 20 Wisconsin officials, violated his rights under the
“Electors Clause” in Article II, Section 1 of the Constitution.1 Plaintiff seizes upon three pieces
of election guidance promulgated by the Wisconsin Elections Commission (WEC)—a creation of
the Wisconsin Legislature that is specifically authorized to issue guidance on the state election
statutes—and argues that the guidance, along with election officials’ conduct in reliance on that
guidance, deviated so significantly from the requirements of Wisconsin’s election statutes that the
election was itself a “failure.”
Plaintiff’s requests for relief are even more extraordinary. He seeks declarations that
defendants violated his Constitutional rights and that the violations “likely” tainted more than
1
Plaintiff’s complaint also refers to the First Amendment and the Equal Protection and Due Process Clauses of the
Fourteenth Amendment. At the December 9, 2020 final pre-hearing conference, plaintiff disclaimed reliance on any
First Amendment or Due Process claims. While counsel purported to reserve the Equal Protection claim, the
complaint offers no clue of a coherent Equal Protection theory and plaintiff offered neither evidence nor argument to
support such a claim at trial. It is therefore abandoned. See Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir.
2012) (undeveloped arguments and arguments unsupported by pertinent authority are waived).
Case 2:20-cv-01785-BHL Filed 12/12/20 Page 1 of 23 Document 134

A001
50,000 ballots. Based on this declaratory relief, his complaint seeks a “remand” of the case to
the Wisconsin Legislature to consider and remedy the alleged violations. Plaintiff’s ask has since
continued to evolve. In his briefing, he says he wants “injunctive relief” requiring the Governor
“to issue a certificate of determination consistent with, and only consistent with, the appointment
of electors by the Wisconsin legislature.” In argument, counsel made plain that plaintiff wants
the Court to declare the election a failure, with the results discarded, and the door thus opened for
the Wisconsin Legislature to appoint Presidential Electors in some fashion other than by following
the certified voting results.
Defendants want plaintiff’s claims thrown out, arguing his complaint fails to state a claim
and raising several knotty issues of federal jurisdiction. With the Electoral College meeting just
days away, the Court declined to address the issues in piecemeal fashion and instead provided
plaintiff with an expedited hearing on the merits of his claims. On the morning of the hearing,
the parties reached agreement on a stipulated set of facts and then presented arguments to the
Court. Given the significance of the case, the Court promised, and has endeavored, to provide a
prompt decision. Having reviewed the caselaw and plaintiff’s allegations, the Court concludes it
has jurisdiction to resolve plaintiff’s claims, at least to the extent they rest on federal law,
specifically the Electors Clause. And, on the merits of plaintiff’s claims, the Court now further
concludes that plaintiff has not proved that defendants violated his rights under the Electors Clause.
To the contrary, the record shows Wisconsin’s Presidential Electors are being determined in the
very manner directed by the Legislature, as required by Article II, Section 1 of the Constitution.
Plaintiff’s complaint is therefore dismissed with prejudice.2
PROCEDURAL BACKGROUND
AND FINDINGS OF FACT
1. THE PARTIES
Plaintiff Donald J. Trump is the current, properly elected, President of the United States.
In 2016, after a statewide recount, plaintiff won Wisconsin’s Presidential Electors by 22,748 votes.
Certificate of Ascertainment for President, Vice President and Presidential Electors General
Election – November 8, 2016, seal affixed by Governor Scott Walker, National Archives,
2
This decision constitutes the Court’s findings of fact and conclusions of law under Federal Rule of Civil Procedure
52.

A002
https://www.archives.gov/electoral-college/2016. Plaintiff went on to win the 2016 Electoral
College with 304 electoral votes. 2016 Electoral College Results, National Archives,
https://www.archives.gov/electoral-college/2016. He was a candidate for reelection to a second
term as President in the November 3, 2020 election.
Defendant Wisconsin Elections Commission is a creation of the Wisconsin Legislature.
See 2015 Wis. Act 118 §4, Wis. Stat. §5.05. It is a bi-partisan, six-person commission that has
“responsibility for the administration” of the state election laws in Chapters 5 to 10 and 12 of the
Wisconsin Statutes.3 Wis. Stat. §15.61. Any action by the commission requires the affirmative
vote of at least two-thirds of its members. Wis. Stat. §5.05(1e). Defendants Ann S. Jacobs,
Mark L. Thomsen, Marge Bostelmann, Dean Knudson, and Robert F. Spindell, Jr. are five of the
six members of the commission.4
Defendant Scott McDonnell is sued in his official capacity as the Dane County Clerk. As
the county clerk, McDonnell has a host of election-related responsibilities, including providing
ballots and elections supplies to the municipalities, preparing ballots, educating voters, and training
election officials. See Wis. Stat. §7.10. Additionally, McDonnell serves on the county board
of canvassers, which is responsible for examining election returns and certifying the results to the
WEC. Wis. Stat. §7.60.
Defendants Maribeth Witzel-Behl, Tara Coolidge, Matt Krauter, and Kris Teske are sued
in their official capacities as the City Clerks of Madison, Racine, Kenosha, and Green Bay. As
city clerks, they supervise both voter registration and elections. Wis. Stat. §7.15. They provide
training for voters and election officials and equip the polling places. Id. Additionally, they are
part of each respective city’s board of canvassers. Wis. Stat. §7.53.
Because of their substantial populations, Milwaukee County and the City of Milwaukee
have additional “election boards.” Milwaukee County has a county board of election
commissioners and the City of Milwaukee has a municipal board of election commissioners.
Wis. Stat. §7.20(1). These boards have the same powers and duties assigned to the municipal
and county clerks in other parts of the state. Wis. Stat. §7.21. Defendant George L.
Christiansen is sued in his official capacity as the Milwaukee County Clerk. As the county clerk,
3
Chapter 11 of the Wisconsin Statutes contains the state’s campaign finance laws, which are outside of the WEC’s
authority.
4
For reasons not explained, plaintiff did not name Commissioner Julie M. Glancey as a defendant.

A003
he serves as the executive director of the county board of election commissioners, id., but he is not
on the county board of canvassers. See Wis. Stat. §7.60. Jim Owczarski is sued in his official
capacity as the Milwaukee City Clerk. Like Defendant Christiansen, Owczarski maintains some
election-related responsibilities, but he is not on the city’s board of canvassers. Wis. Stat. §7.53.
Julietta Henry is sued in her official capacity as Milwaukee County Elections Director.
The record in unclear on Henry’s duties as Elections Director. Claire Woodall-Vogg is sued in
her official capacity as the Executive Director of the City of Milwaukee Election Commission.
She has the same powers and duties assigned to city clerks throughout the rest of the state. See
Wis. Stat. §7.21.
Defendants Tom Barrett, Satya Rhodes-Conway, Cory Mason, John Antaramian, and Eric
Genrich are sued in their official capacities as the Mayors of Milwaukee, Madison, Racine,
Kenosha, and Green Bay. Plaintiff contends that these five mayors unlawfully promoted the
expansion of mail-in voting in their cities by adopting practices that were banned by the Wisconsin
Legislature. Under Wisconsin’s election statutes, mayors play no formal role in presidential
elections.
Defendants Tony Evers and Douglas La Follette are sued in their official capacities as the
Governor and Secretary of State of Wisconsin. As governor, in accordance with Wis. Stat. §7.70,
Defendant Evers signed the certificate of ascertainment prepared by the WEC, affixed the state
seal, and forwarded the certificate to the U.S. administrator of general services. Wis. Stat.
§7.70(5)(b). Defendant La Follette also signed the certificate of ascertainment.
2. WISCONSIN’S MANNER OF CHOOSING PRESIDENTIAL ELECTORS
Article II, Section 1, Clause 2 of the United States Constitution (the “Electors Clause”)
states, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number
of Electors…” U.S. CONST. art. II, §1, cl. 2. Pursuant to this federal Constitutional command,
the Wisconsin Legislature has directed that Wisconsin choose its Presidential Electors through a
general election. See Wis. Stat. §8.25. Specifically, the Wisconsin Legislature has directed:
(1) Presidential electors. By general ballot at the general election for choosing
the president and vice president of the United States there shall be elected as
many electors of president and vice president as this state is entitled to elect
senators and representatives in congress. A vote for the president and vice
president nominations of any party is a vote for the electors of the nominees.

A004
Wis. Stat. §8.25(1). The statutes define “general election” as “the election held in even-
numbered years on the Tuesday after the first Monday in November to elect United States …
presidential electors.” Wis. Stat. §5.02(5).
The Wisconsin Legislature has also established laws detailing the particulars of election
administration; these details are set forth in Chapters 5 to 12 of the Wisconsin Statutes. For the
last five years, responsibility for the administration of Wisconsin elections has rested with the
WEC. The Wisconsin Legislature created the WEC in 2015 specifically to “have the
responsibility for the administration of … laws relating to elections and election campaigns.”
2015 Wis. Act 118 §4; Wis. Stat. §5.05. To carry out these duties, the legislature has delegated
significant authority to the WEC. The Wisconsin Legislature directed the WEC to appoint an
administrator to “serve as the chief election officer” of the state. Wis. Stat. §5.05(3d), (3g). The
Wisconsin Legislature has authorized the WEC to conduct investigations, issue subpoenas, and
sue for injunctive relief. Wis. Stat. §5.05(b), (d). The legislature also directed the WEC to
receive reports of “possible voting fraud and voting rights violations,” Wis. Stat. §5.05(13), and to
“investigate violations of laws administered by the commission and … prosecute alleged civil
violations of those laws.” Wis. Stat. §5.05(2m)(a).
The Wisconsin Legislature has also assigned powers and duties under the state election
laws to municipal and county clerks, municipal and county boards of canvassers, and in
Milwaukee, the municipal and county boards of election commissioners. Wis. Stat. §§7.10, 7.15,
7.21. The Wisconsin Legislature has directed that these officials, along with the WEC,
administer elections in Wisconsin. See Wis. Stat. chs. 5 to 10 and 12. When the polls close
after an election, these officials make sure that “all ballots cast at an election … be counted for the
person … for whom … they were intended.” Wis. Stat. §7.50(2). Once all the votes have been
counted, the WEC chairperson “shall publicly canvass the returns and make his or her certifications
and determinations on or before … the first day of December following a general election.” Wis.
Stat. §7.70(3)(a). For the determination of Presidential Electors, the Wisconsin Legislature has
directed the WEC to “prepare a certificate showing the determination of the results of the canvass
and the names of the persons elected.” Wis. Stat. §7.70(5)(b). The legislature has further
directed that “the governor shall sign [the certificate], affix the great seal of the state, and transmit
the certificate by registered mail to the U.S. administrator of general services.” Id. At noon on

A005
the first Monday after the second Wednesday in December, the Presidential Electors meet to vote
for the presidential candidate from the political party which nominated them. Wis. Stat. §7.75.
In addition to logistically administering the election, the Wisconsin Legislature has
directed the WEC to issue advisory opinions, Wis. Stat. §5.05(6a), and “[p]romulgate rules …
applicable to all jurisdictions for the purpose of interpreting or implementing the laws regulating
the conduct of elections or election campaigns.” Wis. Stat. §5.05(1)(f). The WEC is to
“conduct or prescribe requirements for educational programs to inform electors about voting
procedures, voting rights, and voting technology.” Wis. Stat. §5.05(12).
Finally, the Wisconsin Legislature has provided detailed recount procedures. Wis. Stat.
§9.01. After requesting a recount, “any candidate … may appeal to circuit court.” Wis. Stat.
§9.01(6). The legislature has also directed that “[Wis. Stat. §9.01] constitutes the exclusive
judicial remedy for testing the right to hold an elective office as the result of an alleged irregularity,
defect or mistake committed during the voting or canvassing process.” Wis. Stat. §9.01(11).
3. WEC’S GUIDANCE IN ADVANCE OF THE 2020 PRESIDENTIAL

ELECTION IN WISCONSIN
Consistent with its statutory mandate, since the start of the year, the WEC has published
more than 175 messages to County and Municipal elections officials in anticipation of the
November 2020 general election. See Recent Clerk Communications, Wisconsin Elections
Commission, https://elections.wi.gov/clerks/recent-communications. In addition to notifying
elections officials of training opportunities, relevant court decisions, and upcoming deadlines,
these messages provided detailed guidance on how to prepare for the election and count the
resulting votes. See id. As stipulated by the parties, the WEC issued specific guidance on three
specific issues flagged by plaintiff: missing or incorrect absentee ballot witness certificate
addresses, voters claiming indefinitely confined status, and absentee ballot drop boxes.
(Stipulation of Proposed Facts and Exhibits, ECF No. 127 ¶11.)
WEC’s guidance on at least one of these issues dates back even further. More than four
years ago, on October 18, 2016, the WEC issued written guidance to city and county elections
boards providing guidance on the topic of witness addresses provided in connection with absentee

A006
balloting. (Stipulation, ECF No. 127 ¶4.)5 This guidance explained to elections officials how
to handle missing or incorrect witness addresses on absentee certificate envelopes. (Pl. Ex. 73,
ECF No. 117-72.) The memo highlighted Wis. Stat. §6.87, which states “[i]f a certificate is
missing the address of a witness, the ballot may not be counted.” (Id.) Since the statute does
not provide any additional details, the WEC defined “address” as a “street number, street name
and name of municipality.” (Id.) The memo then provided guidance for situations where a
voter may have left off the certificate one or more components of the witness address. In the
memorandum, the WEC states “clerks must take corrective actions in an attempt to remedy a
witness address error.” (Id.) The guidance allowed clerks to contact the voter to notify them of
the address requirement; however, the clerk only had to contact the voter if the clerk could not
“remedy the address insufficiency from extrinsic sources.” (Id.) The WEC stated “clerks shall
do all that they can reasonably do to obtain any missing part of the witness address.” (Id.) The
purpose of the guidance was to “assist voters in completing the absentee certificate sufficiently so
their votes may be counted.” (Id.) This has been the unchallenged guidance on the issue for
more than four years.
In September 2020, as directed in Wis. Stat. §7.08(3), the WEC updated the Wisconsin
Election Administration Manual. The updated manual states “[c]lerks may add a missing witness
address using whatever means are available.” Wis. Election Admin. Manual, 99 (September
2020). Finally, on October 19, 2020, the WEC issued “Spoiling Absentee Ballot Guidance,”
reaffirming the previous guidance, and stating “the clerk should attempt to resolve any missing
witness address information prior to Election Day if possible, and this can be done through reliable
information (personal knowledge, voter registration information, through a phone call with the
voter or witness). The witness does not need to appear to add a missing address.” (Pl. Ex. 35,
ECF No. 117-35.)
On March 29, 2020, in the early stages of the COVID-19 pandemic, the WEC issued
“Guidance for Indefinitely Confined Electors COVID-19” to election officials across the state.
(Pl. Ex. 2, ECF No. 117-2.) Through the published guidance, the WEC stated that “many voters
5
The parties’ stipulation describes this as an October 19, 2016 memorandum. (Stipulation of Proposed Facts and
Exhibits, ECF No. 127 ¶4.) The memo itself is dated October 18, 2016, however. (ECF No. 117-72.) The
Court will use the date on the actual document.

A007
of a certain age or in at-risk populations” may meet the standard of indefinitely confined due to
the ongoing pandemic. (Id.) The Guidance also stated:
1. Designation of indefinitely confined status is for each individual voter to make
based upon their current circumstances. It does not require permanent or total
inability to travel outside of the residence. The designation is appropriate for
electors who are indefinitely confined because of age, physical illness or infirmity
or are disabled for an indefinite period.
2. Indefinitely confined status shall not be used by electors simply as a means to

avoid the photo ID requirement without regard to whether they are indefinitely
confined because of age, physical illness or infirmity, or disability.
(Id.) The WEC issued this guidance after the Dane County Clerk issued a statement advising that
the pandemic itself was sufficient to establish indefinite confinement for all voters. (See
Stipulation, ECF No. 127 ¶23.) The statement was challenged in court, and the Wisconsin
Supreme Court granted a temporary injunction against the Dane County Clerk. See Jefferson v.
Dane County, 2020AP557-OA (March 31, 2020). In concluding that the Dane County guidance
was incorrect, the Wisconsin Supreme Court expressly confirmed that the WEC guidance quoted
above provided “the clarification on the purpose and proper use of the indefinitely confined status
that is required at this time.” Id.
On August 19, 2020, the WEC sent all Wisconsin election officials additional guidance
that, among other things, discussed absentee ballot drop boxes. (Pl. Ex. 13, ECF No. 117-13.)
Wisconsin law provides that absentee ballots “shall be mailed by the elector, or delivered in person,
to the municipal clerk.” Wis. Stat §6.87(4)(b). The WEC memorandum provided advice on
how voters could return their ballots to the municipal clerk, including “information and guidance
on drop box options for secure absentee ballot return for voters.” (Pl. Ex. 13, ECF No. 117-13.)
Citing to a resource developed by the U.S. Cybersecurity and Infrastructure Security Agency
(CISA), the guidance states the “drop boxes can be staffed or unstaffed, temporary or permanent.”
(Id.) The memorandum stated that the “drop boxes … allow voters to deliver their ballots in
person” and will allow voters “who wait until the last minute to return their ballot.” (Id.) The
memorandum lists potential types of drop boxes, along with security requirements, chain of
custody, and location suggestions for the drop boxes. (Id.)
As stipulated by the parties, election officials in Milwaukee County, the City of
Milwaukee, Dane County, and the City of Madison relied on the above WEC guidance when

A008
handling absentee ballots with missing or incorrect witness address, using absentee ballot drop
boxes, and handling voters that had claimed indefinitely confined status. (Stipulation, ECF No.
127 ¶11.) Because they relied on the guidance, election workers added missing information to
the witness address on at least some absentee ballots, more than five hundred drop boxes were
used throughout the state, and approximately 240,000 “indefinitely confined” voters requested
absentee ballots. (Id. ¶¶ 17, 18, 28.)
4. THE 2020 PRESIDENTIAL ELECTION IN WISCONSIN
On November 3, 2020, nearly 3.3 million Wisconsin voters cast their ballots in the general
election for the President and Vice President of the United States. (Stipulation, ECF No. 127 ¶7.)
At 8:00 p.m., all polls in Wisconsin closed. Wis. Stat. §6.78. The respective boards of
canvassers began to publicly canvass all the votes received at the polling place. Wis. Stat. §7.51.
Voting officials in Milwaukee dealt with an unprecedented number of absentee ballots
during this election. (Pl. Ex. 62, ECF No. 117-61.) In Milwaukee and Dane Counties, and
likely other locations, election officials processed the absentee ballots in accordance with guidance
published by the WEC. (Stipulation, ECF No. 127 ¶11.) The WEC received the last county
canvass on November 17, 2020. (Id. ¶8.) On November 18, 2020, the deadline for requesting
a recount, plaintiff sought a recount under Wis. Stat. §9.01 of only Dane and Milwaukee Counties.6
(Id. ¶9.) The Milwaukee County recount was completed on November 27, 2020 and the Dane
County recount was completed on November 29, 2020. (Id. ¶10.) Once the recount was
complete, the WEC prepared the Certificate of Ascertainment for the Governor’s signature. See
Wis. Stat. §7.70(5)(b). On November 30, 2020, Governor Evers signed the certificate and affixed
the state seal. (Def. Ex. 501, ECF No. 119-1.)
On December 1, 2020, the day after Wisconsin certified its election results, Donald Trump,
Michael Pence, and the Trump campaign filed a petition in the Wisconsin Supreme Court against
Governor Tony Evers, the Wisconsin Elections Commission, and other state election officials.
6
After receiving a recount petition and $3 million payment from the Trump campaign, the six-member, bipartisan
commission conducted a meeting on November 18, 2020, at which the commission unanimously approved the recount
order. The WEC ordered a partial recount of the presidential election results in Dane and Milwaukee Counties on
November 19, 2020. The recount order required Dane and Milwaukee Counties’ boards of canvassers to convene
by 9 a.m. Saturday, November 21, and complete their work by noon on Tuesday, December 1. Wis. Elections
Comm’n Order for Recount, Recount EL 20-01, https://elections.wi.gov/node/7250.

A009
Trump v. Evers, No. 2020AP001971 (Wis. S. Ct.). The issues presented by the plaintiffs included
whether absentee ballots should be excluded due to various alleged deviations from legislated
election procedures. As a remedy, they asked the Court to decertify the state’s election results
and exclude 221,000 votes in Milwaukee and Dane Counties from the count. On December 3,
2020, the Wisconsin Supreme Court denied the petition for leave to commence an original action
in the state Supreme Court, but noted that, as an aggrieved candidate, plaintiff could refile at the
circuit court level.
That same day, plaintiff filed his complaint in this Court. Additionally on that day,
plaintiff, along with Michael R. Pence, and Donald J. Trump for President, Inc. filed complaints
in Dane and Milwaukee County Circuit Courts against Joseph R. Biden, Kamala D. Harris, and
several Wisconsin election officials, some of whom are defendants in this case. Trump v. Biden,
No. 2020CV007092 (Milw. Co. Cir. Ct.), No. 2020CV002514 (Dane Co. Cir. Ct.). Chief Justice
Roggensack of the Wisconsin Supreme Court combined the cases and appointed Racine County
Reserve Judge Stephen A. Simanek to hear it. The suits are substantially similar and both allege
irregularities in the way absentee ballots were administered. In the Milwaukee County case, the
plaintiffs allege the ballots were issued without the elector having first submitted a written
application; there were incomplete and altered certification envelopes; and there was a massive
surge in indefinitely confined absentee ballot voters. The Dane County case included the same
claims, plus one involving an allegation that absentee ballots were improperly completed or
delivered to City of Madison employees at a public event, “Democracy in the Park.” The
plaintiffs asked the state court to set aside the county board of canvassers’ legal determinations
that certain absentee ballots should be counted due to deviations in state elections laws.7
LEGAL CONCLUSIONS AND ANALYSIS
Plaintiff claims that defendants violated his rights under the Electors Clause by “deviating
from the law, substituting their ‘wisdom’ for the laws passed by the State Legislature and signed
by the Governor.” (Pl. Br., ECF No. 109.) In the complaint, plaintiff contends three specific
pieces of guidance issued by the WEC, and followed by the named defendants, contradict
7
On December 11, Judge Simanek affirmed the recount and ruled against plaintiff in the state court proceeding.
Trump v. Biden, No. 2020CV007092, Doc. 101 (Milw. Co. Cir. Ct. Dec. 11, 2020). Plaintiff has since filed an
appeal in the Wisconsin Supreme Court.

A010
Wisconsin’s election statutes, and that the WEC lacked the authority to issue any guidance in
contravention of Wisconsin law. (Compl., ECF No. 1.) Invoking the Court’s federal question
jurisdiction under 28 U.S.C. §1331, plaintiff asserts claims for the violation of his federal
Constitutional rights under 42 U.S.C. §1983. (Id.) Among other remedies, he seeks declaratory
relief under the Declaratory Judgment Act, 28 U.S.C. §2201, and asks this Court to declare the
Wisconsin general election void under the U.S. Constitution. (Id.)
I. This Court Has Limited Jurisdiction to Resolve Plaintiff’s Electors Clause

Challenge.
Before addressing the merits of plaintiff’s claims, this Court has the obligation of
confirming that it has jurisdiction even to consider them. Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994) (federal district courts “possess only that power authorized by
Constitution and statute”). Defendants offer a host of arguments related to the justiciability of
plaintiff’s claims. They insist that plaintiff lacks standing to assert his claims, that his claims are
barred by the Eleventh Amendment, and that they are moot. (Defs. Brs., ECF No. 70, 81, 87, 95,
98, 100, 101, and 120.) Finally, they contend that even if this Court could resolve plaintiff’s
claims, it should abstain from doing so. (Defs. Brs., ECF No. 70, 81, 87, 95, 101, and 120.)
Despite the tricky questions of federal jurisdiction implicated by plaintiff’s claims and requests for
relief, the Court concludes plaintiff’s claims are justiciable, at least in part. Given the importance
of the issues at stake and the need for a prompt resolution, the Court will not abstain from ruling
on whether defendants violated plaintiff’s federal rights under the Electors Clause.
A. Plaintiff Has Standing to Seek an Adjudication of the Alleged Violation of His

Rights under the Electors Clause.
Defendants insist that plaintiff lacks standing to assert claims and obtain declaratory relief
based on the Electors Clause. (Defs. Brs., ECF No. 70, 81, 87, 95, 98, 100, 101, and 120.) That
plaintiff seeks primarily declaratory relief does not remove his obligation to establish standing.
The Declaratory Judgment Act permits the Court to “declare the rights and other legal relations of
any interested party,” but only when there is “a case of actual controversy within its jurisdiction.”
28 U.S.C. §2201(a). “A ‘controversy’ in this sense must be one that is appropriate for judicial
determination,” Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240 (1937), and

A011
“the core component of standing is an essential and unchanging part of the case-or-controversy
requirement of Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
To establish standing, plaintiff bears the burden of proving that he “(1) suffered an injury
in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely
to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2016), as revised (May 24, 2016). An injury in fact is one in which plaintiff claims to have
“suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and
‘actual or imminent, not conjectural or hypothetical.’” Id. (quoting Lujan, 504 U.S. at 560).
Plaintiff asserts that he suffered an injury in fact when he “was denied the Constitutional
right to have electors appointed in a lawful manner in an election in which he was a candidate.”
(Pl. Br., ECF No. 109.) The Court agrees. The Eighth Circuit and the Eleventh Circuit have
concluded that losing candidates likely have standing to bring a claim under the Electors Clause,
because such a candidate has suffered a “personal, distinct injury.” Wood v. Raffensperger, No.
20-14418, 2020 WL 7094866, at *4 (11th Cir. Dec. 5, 2020); Carson v. Simon, 978 F.3d 1051,
1057 (8th Cir. 2020) (“An inaccurate vote tally is a concrete and particularized injury to candidates
such as the Electors.”). That is the situation here: plaintiff, a candidate for election, claims he
was harmed by defendants’ alleged failure to comply with Wisconsin law. Assuming he could
prove his claims, he has suffered an injury. Plaintiff, as a candidate for election, has a concrete,
particularized interest in the actual results of the general election. Carson, 978 F.3d at 1057; see
Carney v. Adams, ___ S. Ct. ___, 2020 WL 7250101 (Dec. 10, 2020) (holding plaintiff had not
proved injury in fact sufficient to establish standing where plaintiff was merely potential candidate
and had not yet applied for judicial position). Plaintiff has therefore established injury in fact.
Based on the allegations in his complaint, plaintiff also meets the other requirements for
standing. He contends that defendants’ failure to comply with Wisconsin law has resulted in a
failed election, one in which he was one of the two major-party candidates for President.
(Compl., ECF No. 1.) As administrators of the election, defendants implemented the Wisconsin
election statutes and WEC’s guidance. His harms are therefore traceable to defendants. And as
redress, he seeks a declaration that defendants violated the Electors Clause by failing to follow the

A012
8
directions of the Wisconsin Legislature during the 2020 Presidential Election. (Id.)
Redressability is established because “plaintiff ‘personally would benefit in a tangible way from
the court’s intervention.’” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104 n.5 (1998)
(quoting Warth v. Seldin, 422 U.S. 490, 508 (1975)). Thus, his alleged injury is fairly traceable
to the challenged conduct of the defendants and would be redressed by a favorable judicial
decision.
Defendants’ arguments against standing are largely premised on their challenges to the
merits of plaintiff’s claims. For example, defendants complain that “[p]laintiff offers no proof
whatsoever of how many votes were affected in the three categories of alleged state election law
violations he identifies.” (Def. Br., ECF No. 98.) But that argument puts the cart before the
horse. A court must determine standing based on the allegations in the complaint, not based on
its final resolution of the veracity of those allegations. Spokeo, 136 S. Ct. at 1547 (“Where, as
here, a case is at the pleading stage, the plaintiff must ‘clearly ... allege facts demonstrating’ each
element.”). If plaintiff were to succeed in proving that defendants violated the Electors Clause,
causing Wisconsin’s Presidential Electors to be appointed in a manner inconsistent with the
Wisconsin Legislature’s directives, and depriving plaintiff of his opportunity to win those
Presidential Electors, he should have the ability (and the standing) to enforce the Constitution’s
plain terms in federal court.
B. The Eleventh Amendment and Pennhurst Do Not Apply to Plaintiff’s Unique

Article II Claims.
Defendants next argue that plaintiff’s claims are barred by the Eleventh Amendment and
the Supreme Court’s decision in Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984).
(Defs. Brs., ECF No. 75, 81, 98, 101, and 120.) They contend that plaintiff is complaining that
defendants failed to comply with state law such that the Eleventh Amendment bars this Court from
entertaining such claims. (Id.)
8
The complaint alleges the exclusive remedy for a failed election resides in the Wisconsin Legislature. (Compl.,
ECF No. 1.) That allegation brought strongly into question whether this Court could redress Plaintiff’s injury, a
point raised by the Court at the initial hearing with the parties. Plaintiff has since explained that he seeks a declaration
that the Wisconsin general election was a failed election under 3 U.S.C. §2, a declaration he argues is a predicate to
allowing the Wisconsin Legislature to take action to determine the manner in which the state should appoint its
Presidential Electors now that the originally chosen method has “failed.” (Transcript, ECF No. 130.) While this
explanation is tenuous, it sufficiently ties the relief requested to a potential remedy to establish standing.

A013
The Eleventh Amendment provides that: “The judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted against one of
the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
Defendants are correct that, as a general matter, the Eleventh Amendment bars litigation in federal
courts against a state.9 Will v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1989); MCI
Telecommunications Corp. v. Illinois Bell Tel. Co., 222 F.3d 323, 336 (7th Cir. 2000) (“[The
Eleventh] Amendment bars federal jurisdiction over suits brought against a state … [and] extends
to state agencies as well.”). But the Supreme Court has long held that suits against state agents,
rather than against the state itself, based on those agents’ violations of federal law, can be
maintained in federal court without running afoul of the Eleventh Amendment. See Ex parte
Young, 209 U.S. 123, 159-60 (1908). A federal court thus may adjudicate and order relief against
state officers based on allegations of ongoing unconstitutional conduct. Id.; MCI
Telecommunications Corp., 222 F.3d at 345.
In Pennhurst, the Supreme Court clarified that the rule in Ex parte Young does not extend
to claims based merely on alleged violations of state law. 465 U.S. at 106 (“[I]t is difficult to
think of a greater intrusion on state sovereignty than when a federal court instructs state officials
on how to conform their conduct to state law.”). Thus, under the Eleventh Amendment and state
sovereign immunity, a federal court “cannot enjoin a state officer from violating state law.” Dean
Foods Co. v. Brancel, 187 F.3d 609, 613 (7th Cir. 1999).
The Pennhurst exception to Ex parte Young does not apply here, because plaintiff’s claims
are based on federal law—the Electors Clause of Article II, Section 1 of the U.S. Constitution.
Donald J. Trump for President, Inc. v. Boockvar, No. 2:20-CV-966, 2020 WL 5997680, at *75
(W.D. Pa. Oct. 10, 2020) (holding that claims under the Electors Clause are not barred by the
Eleventh Amendment); cf. Dean Foods Co., 187 F.3d at 614 (“the question at the heart of this
jurisdictional matter is what is the source of the regulations’ potential invalidity”). While
plaintiff also cites provisions of Wisconsin’s election statutes, he does so in an attempt to show
that defendants violated not merely those statutes, but rather the Electors Clause itself. In this
9
The Eleventh Amendment precludes a federal suit against state agencies, and this likely includes the Wisconsin
Elections Commission. See Wis. Stat. §5.05; MCI Telecommunications Corp. v. Illinois Bell Tel. Co., 222 F.3d 323,
336 (7th Cir. 2000); Feehan v. Wisconsin Elections Commission, No. 20-cv-1771, 2020 WL 7250219 (E.D. Wis. Dec.
9, 2020). The WEC has not made this argument. Even if it had, plaintiff’s claims against the individual commission
members would survive.

A014
unique context, alleged violations of state laws implicate and may violate federal law. See Bush
v. Palm Beach Cnty. Canvassing Bd., 531 U.S. 70, 76 (2000) (“[I]n the case of a law enacted by a
state legislature applicable not only to elections to state offices, but also to the selection of
Presidential electors, the legislature is not acting solely under the authority given it by the people
of the State, but by virtue of a direct grant of authority made under Art. II, §1, cl. 2, of the United
States Constitution.”). This is the opposite of what the Eleventh Amendment forbids; here, a
truly federal cause of action is being articulated. Because plaintiff’s claims and request for relief
are premised on a federal Constitutional violation, not merely a violation of state law, Pennhurst
does not apply, and the Eleventh Amendment does not bar plaintiff’s claims.
C. Plaintiff’s Claims Are Not Moot.
Defendants also contend plaintiff’s claims are moot. (Defs. Brs., ECF No. 70, 75, 95,
120.) They insist that because plaintiff waited until after Wisconsin certified the election results
to file suit, his suit is too late. (Id.) They further maintain that plaintiff’s claims are moot
because Governor Evers has already signed a “Certificate of Ascertainment For President, Vice
President, and Presidential Electors General Election - November 3, 2020” (2020 Electoral College
Results, National Archives, https://www.archives.gov/electoral-college/2020) on November 30,
2020, an act they contend makes this action irrelevant. (Id.)
The final determination of the next President and Vice President of the United States has
not been made, however, and the issuance of a Certificate of Ascertainment is not necessarily
dispositive on a state’s electoral votes. See Bush v. Gore, 531 U.S. 98, 144 (2000) (Ginsburg J.,
dissenting) (noting none of the various Florida elector deadlines “has ultimate significance in light
of Congress’ detailed provisions for determining, on ‘the sixth day of January,’ the validity of
electoral votes”).
Under the federal statute governing the counting of electoral votes, a state governor may
issue a certificate of ascertainment based on the canvassing and then a subsequent certificate of
“determination” upon the conclusion of all election challenges. 3 U.S.C. §6. The certificate of
“determination” notifies the U.S. Congress of the state decision when Congress convenes on
January 6 to count the electoral votes. Indeed, the WEC acknowledged that plaintiff’s claims are
not moot in a filing with the Wisconsin Supreme Court. (Response of Respondents Wisconsin
Elections Commission and Commissioner Ann Jacobs, Trump v. Evers, No. 20AP1971-OA, filed

A015
Dec. 1, 2020, ECF No. 109-1.) At this time, it is also unclear whether the litigation commenced
in state court, Trump v. Biden, No. 2020CV007092 (Milw. Co. Cir. Ct.), No. 2020CV002514
(Dane Co. Cir. Ct.), is coming to a final resolution sufficient to resolve plaintiff’s challenges.
Given plaintiff’s pending appeal and the limited time available should that appeal succeed on the
state law issues, this Court will proceed to decide the merits of the federal law claims. The Court
concludes this case is not yet moot.
D. This Court Is Not Required to Abstain from Deciding Plaintiff’s Challenge

under the Electors Clause.
Defendants also contend that even if this Court could adjudicate plaintiff’s claims, it should
abstain from doing so. (Defs. Brs., ECF No. 70, 81, 87, 95, 101, and 120.) They focus on three
different abstention doctrines: (1) Wilton/Brillhart abstention; (2) Pullman abstention; and (3)
Colorado River abstention. (Id.) After reviewing the law under all three forms of abstention,
this Court will decline defendants’ invitation to abstain.
Defendants first invoke the Wilton/Brillhart abstention doctrine, derived from Wilton v.
Seven Falls Co., 515 U.S. 277, 288 (1995), and Brillhart v. Excess Ins. Co. of America, 316 U.S.
491 (1942). Under the Wilton/Brillhart abstention doctrine, “district courts possess significant
discretion to dismiss or stay claims seeking declaratory relief, even though they have subject matter
jurisdiction over such claims.” R.R. St. & Co. v. Vulcan Materials Co., 569 F.3d 711, 713 (7th
Cir. 2009). While labelled with Supreme Court case names, this form of abstention arises from
the plain terms of the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, itself. Section 2201
expressly provides that district courts “may declare the rights and other legal relations of any
interested party seeking such declaration.” 28 U.S.C. § 2201(a) (emphasis added). The statute
thus gives district courts the discretion not to declare the rights of litigants. The Seventh Circuit
has confirmed that a district court properly exercises discretion to abstain where, for example,
“declaratory relief is sought and parallel state proceedings are ongoing.” Envision Healthcare,
Inc. v. PreferredOne Ins. Co., 604 F.3d 983, 986 (7th Cir. 2010).
Defendants also invoke Pullman abstention. R.R. Comm’n of Tex. v. Pullman Co., 312
U.S. 496, 501-02 (1941). The Pullman doctrine “applies when ‘the resolution of a federal
constitutional question might be obviated if the state courts were given the opportunity to interpret
ambiguous state law.’” Wisconsin Right to Life State Political Action Comm. v. Barland, 664

A016
F.3d 139, 150 (7th Cir. 2011) (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716-17
(1996)). Pullman abstention is appropriate if there is (1) “a substantial uncertainty as to the
meaning of the state law” and (2) “a reasonable probability that the state court’s clarification of
state law might obviate the need for a federal constitutional ruling.” Id. (internal quotation
marks omitted).
Finally, defendants ask the Court to avoid deciding this case under Colorado River
abstention. See Colorado River Water Conservation District v. United States, 424 U.S. 800, 818
(1976). Under Colorado River abstention principles, a federal court should abstain in favor of a
parallel state court lawsuit if (1) “the concurrent state and federal actions are actually parallel” and
(2) “the necessary exceptional circumstances exist to support a stay or dismissal.” DePuy Synthes
Sales, Inc. v. OrthoLA, Inc., 953 F.3d 469, 477 (7th Cir. 2020) (internal quotation marks omitted).
The Court declines to abstain under any of these doctrines. The federal Constitutional
issues raised in plaintiff’s complaint are obviously of tremendous public significance. For the
first time in the nation’s history, a candidate that has lost an election for president based on the
popular vote is trying to use federal law to challenge the results of a statewide popular election.
While there is parallel litigation pending in the state court, that litigation does not address the
federal constitutional issue that is the center of plaintiff’s case. Given the importance of the
federal issue and the limited timeline available, it would be inappropriate to wait for the conclusion
of the state court case. In these circumstances, the Court will exercise its discretion to declare
plaintiff’s rights under the Electors Clause and will decline to utilize Pullman or Colorado River
abstention principles to defer to the state court proceedings.
II. Plaintiff’s Claims Fail on Their Merits—Wisconsin’s Appointment of Presidential

Electors for the 2020 Presidential Election Was Conducted in the Manner Directed
by the Wisconsin Legislature.
To succeed on his claims for relief under 42 U.S.C. §1983, plaintiff must prove that
defendants acted under the color of state law and deprived him of a right secured by the
Constitution or laws of the United States. Wilson v. Warren Cnty., Ill., 830 F.3d 464, 468 (7th
Cir. 2016) (citations omitted). Plaintiff alleges that the defendants violated his rights under the
Electors Clause in Article II, Section 1. (Compl., ECF No. 1.) There is no dispute that
defendants’ actions as alleged in the complaint were undertaken under the color of Wisconsin law.

A017
Defendants strongly and uniformly dispute, however, that their conduct violated any Constitutional
provision. (Defs. Brs., ECF No. 70, 81, 87, 95, 98, 100, 101, and 120.)
A. The Wisconsin Legislature Has Directed the Appointment of Presidential

Electors to Be by Popular Vote.
The Electors Clause directs state legislatures to appoint presidential electors in a manner
of their choosing. U.S. CONST. art. II, § 1, cl. 2. As the Supreme Court explained just this past
summer, the Electors Clause was the result of “an eleventh-hour compromise” at the 1787
Constitutional convention. Chiafalo v. Washington, __ U.S. __, 140 S. Ct. 2316, 2320 (2020).
Apparently fatigued and ready to return to their homes, the delegates decided on language that
would give state legislatures the responsibility of choosing the “Manner” in which presidential
electors would be appointed. Id. And the Supreme Court has confirmed that state legislators
have “the broadest power of determination” over who becomes a Presidential Elector. Id. at 2324
(quoting McPherson v. Blacker, 146 U.S. 1, 27 (1892)).
Today, the manner of appointment among the states is largely uniform. See Chiafalo, 140
S. Ct. at 2321. All states use an appointment process tied to the popular vote, with political parties
fielding presidential candidates having the responsibility to nominate slates of Presidential
Electors. Id. at 2321-22. But that manner of appointing Presidential Electors is not required by
the Constitution. As Chief Justice Fuller explained in 1892:
The constitution does not provide that the appointment of electors shall be by
popular vote, nor that the electors shall be voted for upon a general ticket, nor that
the majority of those who exercise the elective franchise can alone choose the
electors. It recognizes that the people act through their representatives in the
legislature, and leaves it to the legislature exclusively to define the method of
effecting the object.
McPherson, 146 U.S. at 27. Historically, presidential electors have been appointed directly by
state legislatures, by general ticket, by districts, and by majority popular vote. Id. at 27-32
(summarizing the methods by which presidential electors were appointed by state legislatures
during the first four presidential elections). But by 1832, “all States but one had introduced
popular presidential elections.” Chiafalo, 140 S. Ct. at 2321.
The Wisconsin Legislature’s decision to appoint the state’s presidential electors by popular
vote is embodied in Wis. Stat. §8.25(1). This statute provides:

A018
Presidential electors. By general ballot at the general election for choosing the
president and vice president of the United States there shall be elected as many
electors of president and vice president as this state is entitled to elect senators
and representatives in congress. A vote for the president and vice president
nominations of any party is a vote for the electors of the nominees.
Wis. Stat. §8.25(1). The statutes define “general election” as “the election held in even-
numbered years on the Tuesday after the first Monday in November to elect United States …
presidential electors.” Wis. Stat. §5.02(5).
Plaintiff contends defendants have violated the Electors Clause by failing to appoint the
state’s presidential electors in the “Manner” directed by the Wisconsin Legislature. (Compl.,
ECF No. 1.) By this, plaintiff means that he has raised issues with the WEC’s guidance on three
issues related to the administration of the election. This argument confuses and conflates the
“Manner” of appointing presidential electors—popular election—with underlying rules of election
administration. As used in the Electors Clause, the word “Manner” refers to the “[f]orm” or
“method” of selection of the Presidential Electors. Chiafalo, 140 S. Ct. at 2330 (Thomas, J.,
concurring) (citations omitted). It “requires state legislatures merely to set the approach for
selecting Presidential electors.” Id. Put another way, it refers simply to “the mode of appointing
electors—consistent with the plain meaning of the term.” Id.; see also McPherson v. Blacker,
146 U.S. 1, 27 (1892) (“It has been said that the word ‘appoint’ is not the most appropriate word
to describe the result of a popular election. Perhaps not; but it is sufficiently comprehensive to
cover that mode…”).
The approach, form, method, or mode the Wisconsin Legislature has set for appointing
Presidential electors is by “general ballot at the general election.” Wis. Stat. §8.25(1). There is
no dispute that this is precisely how Wisconsin election officials, including all the defendants,
determined the appointment of Wisconsin’s Presidential Electors in the latest election. They used
“general ballot[s] at the general election for choosing the president and vice president of the United
States” and treated a “vote for the president and vice president nominations of any party is a vote
for the electors of the nominees.” Absent proof that defendants failed to follow this “Manner” of
determining the state’s Presidential Electors, plaintiff has not and cannot show a violation of the
Electors Clause.
Plaintiff’s complaints about the WEC’s guidance on indefinitely confined voters, the use
of absentee ballot drop boxes, and corrections to witness addresses accompanying absentee ballots

A019
are not challenges to the “Manner” of Wisconsin’s appointment of Presidential Electors; they are
disagreements over election administration. Indeed, the existence of these (or other)
disagreements in the implementation of a large election is hardly surprising, especially one
conducted statewide and involving more than 3.2 million votes. But issues of mere
administration of a general election do not mean there has not been a “general ballot” at a “general
election.” Plaintiff’s conflation of these potential nonconformities with Constitutional violations
is contrary to the plain meaning of the Electors Clause. If plaintiff’s reading of “Manner” was
correct, any disappointed loser in a Presidential election, able to hire a team of clever lawyers,
could flag claimed deviations from the election rules and cast doubt on the election results. This
would risk turning every Presidential election into a federal court lawsuit over the Electors Clause.
Such an expansive reading of “Manner” is thus contrary both to the plain meaning of the
Constitutional text and common sense.
B. Even If “Manner” Includes Aspects of Election Administration, Defendants

Administered Wisconsin’s 2020 Presidential Election as Directed by the
Wisconsin Legislature.
Plaintiff’s claims would fail even if the Court were to read the word “Manner” in Article
II, Section 1, Clause 2 to encompass more than just the “mode” of appointment. Including
material aspects of defendants’ election administration in “Manner” does not give plaintiff a win
for at least two reasons. First, the record shows defendants acted consistently with, and as
expressly authorized by, the Wisconsin Legislature. Second, their guidance was not a significant
or material departure from legislative direction.
Plaintiff’s “Manner” challenges all stem from the WEC’s having issued guidance
concerning indefinitely confined voters, the use of absentee ballot drop boxes, and corrections to
witness addresses on absentee ballots. (Compl., ECF No. 1.) Plaintiff expresses strong
disagreement with the WEC’s interpretations of Wisconsin’s election statutes, accusing the WEC
of “deviat[ing] from the law” and “substitut[ing] their ‘wisdom’ for the laws passed by the State
Legislature and signed by the Governor.” (Pl. Br., ECF No. 109.) While plaintiff’s statutory
construction arguments are not frivolous, when they are cleared of their rhetoric, they consist of
little more than ordinary disputes over statutory construction.
These issues are ones the Wisconsin Legislature has expressly entrusted to the WEC.

A020
Wis. Stat. §5.05(2w) (“The elections commission has the responsibility for the administration of
chs. 5 to 10 and 12.”). When the legislature created the WEC, it authorized the commission to
issue guidance to help election officials statewide interpret the Wisconsin election statutes and
new binding court decisions. Wis. Stat. §5.05(5t). The WEC is also expressly authorized to
issue advisory opinions, Wis. Stat. §5.05(6a), and to “[p]romulgate rules … applicable to all
jurisdictions for the purpose of interpreting or implementing the laws regulating the conduct of
elections or election campaigns.” Wis. Stat. §5.05(1)(f). The Wisconsin Legislature also
directed that the WEC would have “responsibility for the administration of … laws relating to
elections and election campaigns.” Wis. Stat. §5.05(1). In sum, far from defying the will of the
Wisconsin Legislature in issuing the challenged guidance, the WEC was in fact acting pursuant to
the legislature’s express directives.
If “Manner” in the Electors Clause is read to includes legislative enactments concerning
election administration, the term necessarily also encompasses the Wisconsin Legislature’s
statutory choice to empower the WEC to perform the very roles that plaintiff now condemns.
Thus, the guidance that plaintiff claims constitutes an unconstitutional deviation from the
Wisconsin Legislature’s direction, is, to the contrary, the direct consequence of legislature’s
express command. And, defendants have acted consistent with the “Manner” of election
administration prescribed by the legislature.
Plaintiff points to language in Chief Justice Rehnquist’s concurring opinion in Bush v.
Gore, stating that “[a] significant departure from the legislative scheme for appointing Presidential
electors presents a federal constitutional question.” Bush v. Gore, 531 U.S. 98, 113 (2000)
(Rehnquist, C.J., concurring). But the record does not show any significant departure from the
legislative scheme during Wisconsin’s 2020 Presidential election. At best, plaintiff has raised
disputed issues of statutory construction on three aspects of election administration.10 While
plaintiff’s disputes are not frivolous, the Court finds these issues do not remotely rise to the level
of a material or significant departure from Wisconsin Legislature’s plan for choosing Presidential
Electors.
10
Even these three statutory construction issues were raised only after-the-fact. If these issues were as significant
as plaintiff claims, he has only himself to blame for not raising them before the election. Plaintiff’s delay likely
implicates the equitable doctrine of laches. The Court does not need to reach that issue, however, and therefore
makes no findings or holdings on laches.

A021
Because plaintiff has failed to show a clear departure from the Wisconsin Legislature’s
directives, his complaint must be dismissed. As Chief Justice Rehnquist stated, “in a Presidential
election the clearly expressed intent of the legislature must prevail.” Bush v. Gore, 531 U.S. 98,
120 (2000) (Rehnquist, C.J., concurring). That is what occurred here. There has been no
violation of the Constitution.
CONCLUSION
Plaintiff’s Electors Clause claims fail as a matter of law and fact. The record establishes
that Wisconsin’s selection of its 2020 Presidential Electors was conducted in the very manner
established by the Wisconsin Legislature, “[b]y general ballot at the general election.” Wis. Stat.
§8.25(1). Plaintiff’s complaints about defendants’ administration of the election go to the
implementation of the Wisconsin Legislature’s chosen manner of appointing Presidential Electors,
not to the manner itself. Moreover, even if “Manner” were stretched to include plaintiff’s
implementation objections, plaintiff has not shown a significant departure from the Wisconsin
Legislature’s chosen election scheme.
This is an extraordinary case. A sitting president who did not prevail in his bid for
reelection has asked for federal court help in setting aside the popular vote based on disputed issues
of election administration, issues he plainly could have raised before the vote occurred. This
Court has allowed plaintiff the chance to make his case and he has lost on the merits. In his reply
brief, plaintiff “asks that the Rule of Law be followed.” (Pl. Br., ECF No. 109.) It has been.

A022
IT IS HEREBY ORDERED:
1. Plaintiff’s complaint, ECF No. 1, is DISMISSED WITH PREJUDICE.

2. Plaintiff’s motion for preliminary injunction, ECF No. 6, is DENIED as moot.
3. Defendants’ motions to dismiss, ECF No. 69, 71, 78, 84, 86, 96, 97, and 99, are
GRANTED.
4. Defendant Governor Evers’ oral motion for judgment under Fed. R. Civ. P. 52 is
GRANTED.
Dated at Milwaukee, Wisconsin on December 12, 2020.
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge

A023
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DONALD J TRUMP,
Plaintiff,
JUDGMENT IN A CIVIL CASE
v.
Case No. 20-cv-1785-bhl
THE WISCONSIN ELECTIONS
COMMISSION, COMMISSIONER ANN S
JACOBS, MARK L THOMSEN,
COMMISSIONER MARGE BOSTELMANN,
COMMISSIONER DEAN KNUDSON,
ROBERT F SPINDELL, JR, GEORGE L
CHRISTENSON, JULIETTA HENRY,
CLAIRE WOODALL-VOGG, MAYOR TOM
BARRETT, JIM OWCZARSKI, MAYOR
SATYA RHODES-CONWAY, MARIBETH
WITZEL-BEHL, MAYOR CORY MASON,
TARA COOLIDGE, MAYOR JOHN
ANTARAMIAN, MATT KRAUTER, ERIC
GENRICH, KRIS TESKE, DOUGLAS J LA
FOLLETTE, TONY EVERS, SCOTT
MCDONELL,
Defendants,
WISCONSIN STATE CONFERENCE

NAACP, DOROTHY HARRELL, WENDELL
J HARRIS, SR, EARNESTINE MOSS,
DEMOCRATIC NATIONAL COMMITTEE,
Intervenor Defendants.
☒ Decision by Court. This case came before the court, the court has decided the issues, and
the court has rendered a decision.
PURSUANT TO THE COURT’S ORDER, the action is DISMISSED WITH PREJUDICE and
the plaintiff shall recover nothing on the complaint.
GINA M. COLLETTI
Clerk of Court
Dated: December 12, 2020
s/ Melissa P.
(By) Deputy Clerk

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Trump 7th Cir 20-3414

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Case: 20-3414 Document: 50 Filed: 12/16/2020 Pages: 91

IN THE UNITED STATES COURT OF APPEALS

DONALD J. TRUMP, as candidate for

WISCONSIN ELECTIONS COMMISSION, et al.,

Appeal from the United States District Court

William Bock, III

Attorneys for Plaintiff-Appellant Donald

CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

The undersigned attorneys, pursuant to Circuit Rule 26.1, on behalf of

Plaintiff-Appellant Donald J. Trump, discloses the following:

Kroger, Gardis & Regas, LLP

3. If the party or amicus is a corporation:

a. Identify all its parent corporation, if any, and

party’s or amicus’ stock:

TABLE OF AUTHORITIES .......................................................................................... V

JURISDICTIONAL STATEMENT ............................................................................... 1

A. District Court Jurisdiction ....................................................................... 1

B. Appellate Jurisdiction .............................................................................. 1

STATEMENT OF THE ISSUES ................................................................................... 2

STATEMENT OF THE CASE....................................................................................... 2

A. Nature of the Case.................................................................................... 2

B. Course of Proceedings and Disposition Below ........................................ 5

C. Statement of Facts ................................................................................... 7

1. Wisconsin’s absentee voting procedures. ...................................... 8

2. Election workers completed witness address

3. Defendants’ statements on and widespread use of

4. Defendants installed 500 unmanned absentee

5. The City of Madison held “Democracy in the Park”

SUMMARY OF ARGUMENT ..................................................................................... 20

A. The Electors Clause................................................................................ 22

1. The Electors Clause vests exclusive authority in

2. The State Election Code cannot be significantly

3. The district court erred by concluding the Electors

i. Plain Meaning of “Manner” As Used in the

ii. Judicial Construction of “Manner” As Used

4. The district court erred through alternative

5. The district court erred by concluding the adoption

i. The district court’s order barely references

ii. Absentee ballot drop boxes are inconsistent

iii. The WEC’s endorsement of absentee ballot

iv. Absentee ballot drop boxes in Wisconsin

v. Absentee ballot drop boxes had a material

vi. So-called “human drop boxes” in the City of

6. The district court erred by concluding that

i. The Wisconsin Election Code bars clerks

ii. Since 2016 the WEC has issued shifting

iii. On October 19, 2020, the WEC strikes again,

iv. The WEC’s October 19, 2020, guidance on

7. The district court erred by concluding that

i. The Wisconsin Election Code limits the

ii. The Clerks in Dane and Milwaukee Counties

iii. On March 29, 2020, the WEC issued

iv. On March 31, 2020, the Wisconsin Supreme

v. The Wisconsin Supreme Court waited until

vi. Wisconsin’s failure to follow the clear

B. The Equal Protection Clause ................................................................. 49

1. The district court erred by finding Plaintiff waived

2. The district court erred by failing to find that

C. The President’s Requested Remedy....................................................... 52

1. Declaratory relief is appropriate ................................................. 52

2. Injunctive relief is appropriate ................................................... 53

CERTIFICATE OF COMPLIANCE ............................................................................ 55

CERTIFICATE OF SERVICE ..................................................................................... 56

Ass’n of Cmty. Orgs. for Reform Now,

Bush v. Palm Beach Cty. Canvassing Bd.,

Democracy N Carolina v. N. Carolina State Bd. of Elections,

Democratic Nat'l Comm. v. Bostelmann,