Monday, January 11, 2021
Non-lawyers do not routinely read or understand court opinions, and that – I fear – has contributed to Americans’ embrace of baseless conspiracy theories regarding the election. I keep seeing “Stop the Steal” proponents assert that our courts have refused to address the merits of the Trump campaign’s claims. This is nonsense. Let’s look at what courts have actually done.
Take, for example, Trump v. Wisconsin Elections Commission, a ruling issued by federal district court judge Brett Ludwig. Judge Ludwig squarely addressed the merits of the claims, though the claims may be a bit less earth-shaking than you’d anticipate given the President’s rhetoric. The opinion makes plain that the wild conspiracy claims raised by Trump at rallies and on social media are quite different than the claims raised in court filings. The reason for this is not hard to grasp: when lawyers knowingly raise false claims in court, judges sanction them.
So what were the claims alleged in the suit? Trump argued that the court should “declare the election a failure, with the results discarded,” because the Wisconsin Elections Commission [WEC] violated his rights under the Electors Clause in Article II of the Constitution. That clause directs state legislatures to appoint presidential electors in a “manner” of their choosing. In Trump’s view, the WEC failed to appoint electors in the “manner” directed by the legislature because the WEC offered guidance on 3 issues: indefinitely confined voters (i.e. voters who use absentee ballots due to age, illness, infirmity, or disability), the use of absentee ballot drop boxes, and corrections to witness addresses accompanying absentee ballots.
The court found that this argument “confuses and conflates the ‘Manner’ of appointing presidential electors – popular election – with underlying rules of election administration.” Trump’s objections, according to Judge Ludwig, represent “disagreements over election administration,” not challenges to the “manner” of the state’s appointment of electors. If Trump’s reading of “manner” was correct, “any disappointed loser” could cast doubt on the election results simply by objecting to one of the many administrative rules necessary to carry out an election with millions of voters.
But the court did not stop there. Judge Ludwig ruled that, even if “manner” is interpreted to include election administration, Trump still loses. All the issues that Trump raises “are ones the Wisconsin Legislature has expressly entrusted” to the WEC by statute. In fact, “far from defying the will of the Wisconsin Legislature in issuing the challenged guidance, the WEC was in fact acting pursuant to the legislature’s express directive.” Further, if the issues were as significant as Trump claims, the court points out that “he has only himself to blame for not raising them before the election.”
But wait! Might this simply be evidence of a judge conspiring to steal the election? Not likely. Judge Ludwig clerked for a Reagan-appointed judge after law school, practiced law at a big firm in Milwaukee, was appointed by President Trump as a bankruptcy judge, and then was appointed by President Trump to the district court bench. Not exactly a leading candidate to join a global conspiracy to steal the election for Joe Biden.
This is just one of more than 60 election lawsuits that Donald Trump lost after his lawyers made their best arguments before judges from across the ideological spectrum. His claims of a stolen election were litigated fully and fairly – and they were rejected every time. If our democracy is going to remain viable, we have to pay attention to court rulings, not to nonsense spouted at a rally or on a You Tube video. When Trump's lawyers insisted that the rule of law must be followed, Judge Ludwig responded succinctly: "It has been.”