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Trump 7th Cir 20-3414
Trump 7th Cir 20-3414
No. 20-3414
v.
APPELLANT’S BRIEF
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:
N/A
b. List any publicly held company that owns 10% or more of the
N/A
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TABLE OF CONTENTS
ARGUMENT ................................................................................................................ 22
i
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ii
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iii
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CONCLUSION............................................................................................................. 55
iv
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TABLE OF AUTHORITIES
Cases
Bush v. Gore,
531 U.S. 98 (2000) ............................................................................................ passim
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
Harkless v. Brunner,
545 F.3d 445 (6th Cir. 2008) .................................................................................... 25
v
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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
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
Trump v. Biden,
No. 2020AP2038, 2020 WL 7331907 (Wis. Dec. 14, 2020)............................ 4, 16, 34
Statutes
vi
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3 U.S.C. § 1................................................................................................................... 52
3 U.S.C. § 15 ................................................................................................................. 54
3 U.S.C. § 2................................................................................................................... 53
3 U.S.C. § 7................................................................................................................... 52
Rules
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
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JURISDICTIONAL STATEMENT
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
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
Wisconsin for the presidential election. (ECF No. 1.) The Defendants’ “significant
present[] a federal constitutional question.” Bush v. Gore, 531 U.S. 98, 113 (2000)
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
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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).
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.
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
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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.
2Throughout this Brief, the following party definitions and abbreviations have
been used:
3
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specified in those provisions may not be counted.” Wis. Stat. § 6.84(2). Defendants,
Trump identified four such ultra vires absentee voting procedures and practices:
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
3Trump v. Biden, No. 2020AP2038, 2020 WL 7331907, at *20 (Wis. Dec. 14,
2020) (Roggensack, C.J., Ziegler & Rebecca Grassl Bradley, JJ., dissenting).
4
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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
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
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
with Plaintiff’s Reply due by 12 noon on December 9, 2020. (ECF No. 45.)
5
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Preliminary Injunction, Defendants filed Motions to Dismiss (ECF Nos. 69, 71, 78,
80), 84, 96, 97, and 99) (the “Motions to Dismiss”). On December 9, 2020, Plaintiff
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.
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
6
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C. Statement of Facts
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
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
On November 17, 2020, the last county in Wisconsin submitted its canvass of
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
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description of the Nature of the Case. The relevant facts pertaining to these
In the 1980s, the Wisconsin Legislature made a policy choice that absentee
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
twofold: (1) apply with the elector’s municipal clerk and (2) provide a photo proof of
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
8
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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)).
Wisconsin law provides that absentee ballot return envelopes must contain a
include the witness’s address. Wis. Stat. § 6.87(2). In 2015, the Legislature
added the following provision: “If a certificate is missing the address of a witness,
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
9
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WEC summed up its guidance, stating “municipal clerks shall do all that they can
supplying missing information based on the clerk’s own personal knowledge. (B053.)
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
President Trump was not a candidate in any subsequent Wisconsin elections until
In late March 2020, amidst fears of a global pandemic in the weeks leading to
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
applicable to absentee ballots and gives no effect to the state’s substantial interest
10
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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
retreat from the October 2016 guidance concerning the clerk’s role in filling in
(B061, bold italics added.) Noticeably missing from this guidance was any
suggestion that election officials could fill in missing witness address information;
On September 18, 2020, once the spotlight on absentee witnesses had passed,
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
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the added witness address.” (B070 (for extract of page); ECF No. 80-2 p. 101¶ 8.b.).
Certificate Envelopes, the Manual specified the step-by-step process for “curing”
* * *
(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
under the heading, Absentee Voter Errors or Ballot Damage After the Spoiling
12
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and these absentee ballots were counted as valid votes. (B029 ¶ 17.) At the
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.)
On March 24, 2020, WEC posted guidance in one of its FAQ documents relating
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.
13
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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,
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 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
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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
injunction, the Milwaukee County Clerk removed his Facebook posting. (B031 ¶ 26.)
(B030 ¶ 22.)
comparison, a total of 66,611 Wisconsin voters cast absentee ballots in the 2016
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
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collaboratively developed plan for the upcoming November election that would,
among other things, “Encourage and Increase Absentee Voting (By Mail and Early,
and place them at key locations throughout their cities, including libraries,
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.
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
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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
(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
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
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Over 500 absentee ballot boxes were used across Wisconsin in the November
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
(B077.)
(B078.)
18
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(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
“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
19
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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.)
preemptively file lawsuits asking a judge to declare that their absentee ballots had
A total of 17,271 absentee ballots were collected through the two Democracy in
SUMMARY OF ARGUMENT
Defendants’ actions took place against the backdrop of a global pandemic and a
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
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
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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
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
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
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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
When state actors cross constitutional lines and tread on the authority of the
to hold the constitutional boundary. Only by holding the constitutional line will
ARGUMENT
Article II, Section 1, Clause 2, the “Electors Clause,” of the United States
McPherson v. Blacker, 146 U.S. 1, 27 (1892). “Art. II, § 1, cl. 2, ‘convey[s] the
22
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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
requirements of Article II.” Bush v. Gore, 531 U.S. at 115 (Rehnquist, C.J.,
concurring).
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
23
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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
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
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
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
Presidential election the clearly expressed intent of the legislature must prevail.”
Therefore, the principle that Art. II, § 1, cl. 2 forbids other state actors from
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
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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
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).
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
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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
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
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
According to the district court, no matter how significantly State officials might
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
26
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branch and administrative officials substituting their judgment for that of the state
required.
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-
the English Language (1828) lists the primary meaning of “manner” as “Form;
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
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,
http://webstersdictionary1828.com/Dictionary/Manner.
bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=146.
27
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certify the oath of office,” and (5) of consequences or penalties for failure to take the
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
usage of that term. The district court’s understanding purports to rest upon Justice
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
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
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
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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
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
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
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Therefore, this Court should reverse the holding of the District that the Electors
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
said “[f]irst, the record shows defendants acted consistently with, and as expressly
authorized by, the Wisconsin Legislature. Second, their guidance was not a
The district court identified four reasons guidance by the WEC was purportedly
§ 5.05(5t)),
interpretation of law, this Court’s review is plenary. Thomas, 288 F.3d at 307.
President are “guidance” documents (A021), not advisory opinions or rules that
went through an administrative rule making process. Nor can guidance documents
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
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
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
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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
[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.
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).
de novo review to mixed questions of fact and law in order to ensure that
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
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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
State Election Code must be considered material per se, requiring finding a
whether the outcome of the election would have changed had the violation not
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
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
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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
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.
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
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
claim. An Article II violation is established upon proof that the direction of the
Legislature was not followed.
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
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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)
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
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
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
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
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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
Upon receipt of an absentee ballot the clerk has two options. “If a municipal
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
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
36
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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
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
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
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
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drop boxes, among other things.22 Only after receiving funding did WEC begin
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
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).
protect aspects of the voting process actually covered in the Election Code, such as
22 Id., p. 10.
23 ECF 117-18.
38
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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
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-
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
absent electors who may prefer not to participate in an election” as well as the
manned ballot drop boxes are more vulnerable to all such concerns
39
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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
significant new method of gathering absentee ballots, but the Legislature was not
There is no doubt the impact of this new absentee balloting method was
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
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
“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
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
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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
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
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
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
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were instructed they were “not required to contact the voter before making that
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
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
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.
absentee balloting. That is why Wis. Stat. § 6.87(6d) states unequivocally, “[i]f a
38 Id.
43
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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
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
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
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
instructions to clerks to try to track down the absentee voter to get their assistance
back to the voter or, if an envelope was retained by the clerk, protecting the chain of
44
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directed by the statute discussed above).40 However, WEC guidance in 2020 did not
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
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
evidentiary value of the document. The clerks’ actions are clearly contrary to the
ECF 117-72, pp. 15-17; ECF 117-72, pp. 33-35; ECF 117-36; ECF 117-72, pp.
40
45
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iv. The WEC’s October 19, 2020, guidance on altering absentee ballot witness
certificates had a material impact on the 2020 Presidential election
incomplete absentee ballot to the extent the Executive Director of the Milwaukee
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
An initial request for absentee ballot requires photo identification, except for
42 B037.
43 B039.
46
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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
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
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
47
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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
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
46 ECF 117-2.
47 Jefferson, 2020 WL 7329433
48
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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
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
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.
49
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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
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
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
49 Tr. 103:20–104:16.
50 Tr. 28:15–31:14.
50
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For reasons similar to the concern in in Bush v. Gore that 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
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
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
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outcome of the election and likely diluting or debasing votes attempted to be cast for
the candidate.
[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,
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
52
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(A013).
The district court was correct. The holding regarding standing applies going
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
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
Case: 20-3414 Document: 50 Filed: 12/16/2020 Pages: 91
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
Wisconsin Supreme Court. (ECF No. 109-1, pp. 16–17, WEC Response filed in Case
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.)
(A015).
54
Case: 20-3414 Document: 50 Filed: 12/16/2020 Pages: 91
consistent with, and only consistent with, the appointment of electors by the
Wisconsin legislature.
CONCLUSION
constitutional authority to determine the manner of the election. Doing nothing will
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
CERTIFICATE OF COMPLIANCE
32(a)(7)(B) because this brief contains 13,994 words, excluding the parts of the brief
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
55
Case: 20-3414 Document: 50 Filed: 12/16/2020 Pages: 91
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.
56
Case: 20-3414 Document: 50 Filed: 12/16/2020 Pages: 91
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
Respectfully Submitted,
TABLE OF CONTENTS
District Court Decision and Order, Dec. 12, 2020 [ECF 134] ..............................A001
DONALD J. TRUMP,
Plaintiff,
v.
Case No. 20-cv-1785-BHL
Defendants.
______________________________________________________________________________
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).
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.
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.
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.
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
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.
(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
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.
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.
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.
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
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.
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.
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
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
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.
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:
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.
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.
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.
4. Defendant Governor Evers’ oral motion for judgment under Fed. R. Civ. P. 52 is
GRANTED.
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge
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,
☒ 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