The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Friday evening, the Supreme Court refused to hear Texas Attorney General Ken Paxton's effort to invalidate the certified election results in four states, concluding Texas lacked standing to challenge election administration in other states. On Saturday, a federal district court judge in Wisconsin issued an opinion explaining why, on the merits, Texas's substantive arguments were without merit. And, as occurred on the Supreme Court, a judge appointed by President Trump, Brett Ludwig, ruled against him.
Judge Ludwig's opinion in Trump v. Wisconsin Elections Commission crisply and clearly explains why the allegations that Wisconsin's election results were the result of unlawful changes in state election rules are without merit.
Judge Ludwig's opinion begins:
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. 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 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.
Judge Ludwig walks through the jurisdictional questions, concluding that he may address the Trump campaign's claims before explaining why these claims fail on the merits. As Judge Ludwig explains, Article II of the Constitution empowers state legislatures to determine the "manner" in which presidential electors are selected, and this allows state legislatures to delegate substantial responsibility for election administration to an agency like the Wisconsin Election Commission. Further, when the WEC exercises such authority, it does not in any way violate Article II. This is significant because the substantive claims in Wisconsin are parallel to the substantive claims made about the elections in Michigan, Georgia, and Pennsylvania in various suits, including Texas v. Pennsylvania, and the vast majority of such claims are equally without merit.
Judge Ludwig's opinion concludes:
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.
Some Trump supporters are inclined to suggest the campaign's court losses are the result of progressive judicial activism or #Resistance judging. This is nonsense. Dozens of election suits have been filed, and dozens of judges of all political stripes and judicial philosophies have ruled against the claims put forward by the Trump campaign and its allies. In this case, the opinion was written by a judge appointed by President Trump in September. Trump and his allies claim they want their legal claims heard by judges who will apply the law. They have been.
UPDATE: Rick Pildes has more on the decision at the ElectionLawBlog.