Trump Campaign Asks High Court to Toss Wisconsin Absentee Votes

WASHINGTON (CN) — The Trump campaign on Tuesday again asked the nation’s highest court to invalidate hundreds of thousands of absentee ballots, this time in Wisconsin.

On Dec. 14, the Wisconsin Supreme Court declined to take up Trump’s challenge to overturn absentee votes the campaign claims were unlawfully cast and counted. The campaign had also ordered a recount a few weeks after the presidential election in the state’s more liberal counties, Milwaukee and Dane.

On Tuesday, Conway, Olejniczak & Jerry Attorney George Burnett argued in a brief yet to be docketed with the U.S. Supreme Court that voters were “encouraged to lie, to avoid the photo ID requirement, using Covid-19 as an excuse.”

While more than 330,000 Americans have died from Covid-related complications, Burnett argues Milwaukee and Dane County clerks improperly encouraged voters to “falsify information” that they were indefinitely confined to their homes — a required condition to receive an absentee ballot in Wisconsin. Burnett offers as proof a March 25 order by the clerks which references Wisconsin Governor Tony Evers’ stay-at-home order and tells residents they could declare themselves indefinitely confined at home as a result.

“Unsurprisingly, along with the clerks’ failure to police the ‘indefinitely confined’ status came an explosion of voters claiming such status to obtain ballots without providing photo ID,” Burnett argues for the Trump campaign. “In Milwaukee, for example, there were only 6,000 voters claiming that status at the start of 2020; by November the number had mushroomed to over 51,060.”

Burnett said “the rank unlawfulness of the clerks’ actions” and their obligations to police the rolls for voters abusing the status had “failed to prove a negative.”

“During the election crisis of 1876-77, President Grant observed that ‘either party can afford to be disappointed in the result, but the country cannot afford to have the result tainted by suspicion of illegal or false returns,’” Burnett says in the brief. “That remains true. Twenty years ago, this court emphasized that state courts have a duty to act in a manner ‘well calculated to sustain the confidence that all citizens must have in the outcome of elections.’ The majority below shirked that duty, refusing to rule on the merits.”

So far, the U.S Supreme Court has been loath to act on any of Trump’s election-related suits and has not yet ruled on the president’s election-related challenge to a Pennsylvania Supreme Court decision filed Dec. 21. The court refused to hear a challenge from Texas and a myriad of other states on Dec. 11.

Justices only grant about 1% of the 10,000-plus cases they receive annually.

Campaign attorneys also asked the court to expedite consideration of the Wisconsin case since it will be “impossible to repair election results that were tainted by illegally cast and counted absentee ballots” once candidates take their oath of office. Justices should order President-elect Joe Biden’s campaign to respond by Dec. 30, the brief states.

In a statement, constitutional professor John Eastman with the conservative think tank Claremont Institute said the petition was extremely persuasive. The issue “could not be more clear,” he said in a statement.

“Article II of the Constitution as interpreted in Bush v. Gore assigns to the ‘Legislature’ the plenary power to determine the manner of choosing presidential electors, not executive officials, unelected bureaucrats or even the state’s judiciary,” Eastman said.

Neither Burnett nor co-counsel James R. Troupis responded to a request for comment Tuesday evening.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit