Just a few hours ago, the Supreme Court of the United States delivered a devastating blow to the Trump Campaign and to many of the President’s supporters. In an unsigned notice, the Court notified Texas Attorney General Ken Paxton that the Supreme Court was declining to hear the case he brought against Pennsylvania, Georgia, Michigan and Wisconsin. Paxton’s suit- commonly referred to as the ‘Texas Case’- brought together a coalition of states from across the Midwest and South (as well as a battalion of congressmen at both the state and national level) to oppose the election processes used by Pennsylvania, Georgia, Michigan and Wisconsin.
The Court rejected the Texas Case on procedural grounds, finding that Texas does not having standing to bring suit against the election processes of other states. The Court’s notice removed the case from their docket (originally set to be heard sometime early next week).
So Is It Over?
The options have narrowed substantially for the Trump campaign. The Supreme Court has shown no appetite to involve themselves in the state’s election processes. As the day of the Electoral College Convention is set for Monday (and the lower court’s do not usually hear cases on weekends) the ability of the Trump campaign to appeal this to other legal bodies has greatly diminished.
What About Wisconsin?
The Supreme Court of Wisconsin seems to be the friendliest court to the administration at this time. Although the position of the Wisconsin Supreme Court is hard to determine, the Court is controlled by a 4-3 Republican Majority. In a rare move, the court will hold its proceedings tomorrow (Saturday) afternoon in order to adjudicate the legal challenges raised by the Trump Campaign before Wisconsin’s Electors convene on Monday.
What Happens if Trump Loses?
- The state’s 10 electors will convene at the Electoral College and cast their ballots for Former Vice President Joe Biden.
What Happens If Trump Wins?
- Winning a case from a state supreme court would be a major victory for the Trump Campaign.
- If the court found in the President’s favour, Wisconsin would need to reassign their electors from Biden to Trump
- While 10 Electors would not change the outcome of the electoral college, it is possible that the Wisconsin court would set “persuasive precedent”
What is “Persuasive Precedent”?
- In the law, there are two types of precedent: Persuasive and Binding
- Binding precedent (like rulings from the Supreme Court of the United States) bind all lower courts to their rulings. Lower courts have no option but to follow the precedent set by the Supreme Court of the United States.
- Persuasive precedent is precedent set by another court that is not in your jurisdiction. Persuasive precedent influences courts in other states by showing how legal issues have been adjudicated in other jurisdictions. (I.E. An Idaho Supreme Court case would be considered extremely persuasive to a supreme court in Florida handling a similar issue).
- A Trump victory in Wisconsin’s Supreme Court could have a snowball effect. The case could be used as highly persuasive precedent in other jurisdictions like Michigan or Georgia where the Trump Campaign’s legal battles continue.
So what is the Trump Campaigns Argument/Evidence in Wisconsin?
Biden lead: 20,012
Votes in controversy: 60,000 (Milwaukee County)
- 40,000 (Madison)
Note: Wisconsin never participated in mail-in-ballots
Trump Campaign Argument:
- In various precincts (including Milwaukee), legally required poll monitors were shut out of polling stations.
- Absentee Ballot Solicitation: Under Wisconsin’s constitution it is illegal to solicit absentee balloting. The Wisconsin constitution does not refer to absentee ballots as a right. (Wiscon’s constitution curiously refers to absentee ballots as a privilege). Absentee Ballots are only valid if the voter requests the ballot prior to the election. Under Wisconsin law, a ballot is unconstitutional if it is sent to a voter without a prior request from the voter. The campaign alleges between just Milwaukee County and Madison alone there are between 60-100k unconstitutional absentee ballots that have been cast.
- (1) The Trump Campaign has communicated that there are at least 3 affidavits allegedly attesting to the electoral malpractice involving the poll watchers.
(2) In Rey Hayden (1981) is Wisconsin case that affirms absentee ballots can not be solicited.