The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Trump campaign's legal losses continue to mount. On Christmas Eve, in Trump v. Wisconsin Election Commission, a unanimous panel of the U.S. Court of Appeals for the Seventh Circuit affirmed the district court's rejection of the Trump campaign's claim that Wisconsin's election results were the result of unlawful changes in state election rules.
The decision, by Judge Michael Scudder, concludes that the Trump campaign's claims fail both due to laches and on the merits. The opinion begins:
Two days after Wisconsin certified the results of its 2020 election, President Donald J. Trump invoked the Electors Clause of the U.S. Constitution and sued the Wisconsin Elections Commission, Governor, Secretary of State, and several local officials in federal court. The district court concluded that the President's challenges lacked merit, as he objected only to the administration of the election, yet the Electors Clause, by its terms, addresses the authority of the State's Legislature to prescribe the manner of appointing its presidential electors. So, too, did the district court conclude that the President's claims would fail even under a broader, alternative reading of the Electors Clause that extended to a state's conduct of the presidential election. We agree that Wisconsin lawfully appointed its electors in the manner directed by its Legislature and add that the President's claim also fails because of the unreasonable delay that accompanied the challenges the President now wishes to advance against Wisconsin's election procedures.
The opinion concludes that Trump does have standing to bring the challenge, but that the campaign unlawfully delayed raising challenges to the alleged illegality of Wisconsin's election administration. Yet the opinion does not stop there. Judge Scudder goes on to explain why the challenge fails on the merits. As the court concludes, "even on a broad reading of the Electors Clause, Wisconsin lawfully appointed its electors in the manner directed by its Legislature."
For those who case about such things, it is worth noting that the opinion in this case–just like the district court opinion below–was written by a Trump-appointed judge.