The Wisconsin Supreme Court on Thursday declined to take up a challenge to the presidential election filed by President Trump’s campaign, finding that under state law, it should have sought a hearing first in a lower-level court.
Trump’s campaign could still seek to challenge President-elect Joe Biden’s more than 20,000-vote lead in the state in Wisconsin circuit court.
But the refusal of the state’s highest court to take up Trump’s petition is a new blow to Trump’s foundering efforts to overturn the election — and a particularly stinging rebuke, given that conservatives hold a 4 to 3 majority on the elected panel.
One conservative member of the panel, Brian Hagedorn, joined the court’s three more liberal members in declining to take the case.
In a concurring opinion, he wrote, “We do well as a judicial body to abide by time-tested judicial norms, even — and maybe especially — in high-profile cases. Following the law governing challenges to election results is no threat to the rule of law.”
Hagedorn wrote that he had determined the court should decline to take the case so the Trump campaign could “promptly exercise” its right to seek action in a lower court.
In a statement, Trump campaign lawyer James Troupis said the campaign planned “immediately” to file in circuit court and that the campaign expects “to be back in front of the Supreme Court very soon.”
Trump’s campaign had argued the matter was of such pressing and urgent concern that it should be considered immediately by the high court. In the petition, it argued that more than 220,000 ballots cast in the state’s two most Democratic counties were improperly accepted by election officials and should be thrown out.
The campaign did not allege that individual voters committed fraud or engaged in wrongdoing, but rather that election officials misinterpreted state law regarding several large categories of ballots. That included all ballots cast early and in person in the two counties. The campaign challenged the practices, even though they were identical to those in place statewide and were unchanged since before the 2016 election, which Trump won and did not contest.
The state Supreme Court agreed that Wisconsin law allows for a challenge from a person who loses after a recount — which Trump sought and confirmed his defeat in the state by Biden. But the state high court said the law requires that the challenge be filed first in circuit court. Under state law, a candidate gets five days to file such a challenge, a window that will close on Monday.
Three of the court’s conservative members appeared more open to the Trump campaign’s arguments and said they wanted to take the case. “Petitioners assert troubling allegations of noncompliance with Wisconsin’s election laws by public officials on whom the voters rely to ensure free and fair elections,” wrote Justice Rebecca Bradley on behalf of the group. “The majority’s failure to embrace its duty (or even an impulse) to decide this case risks perpetuating violations of the law by those entrusted to follow it.”
Still, the judicial discussion did not indicate how the court would ultimately view the merits of the Trump’s arguments should the matter eventually return to the state’s highest court. Nor did justices offer any indication that they believed that overturning the election would be the proper recourse if the court decide to eventually hear it. Indeed, Chief Justice Patience Roggensack, a Republican, wrote that she believed the court should take the case to decide whether the state gave incorrect advice to local clerks about how to run the election.
“However, doing so does not necessarily lead to striking absentee ballots that were cast by following incorrect … advice,” she wrote. “The remedy Petitioners seek may be out of reach for a number of reasons.”
Trump also filed a lawsuit in federal court late Wednesday challenging the Wisconsin results. That case argues that state elections officials violated so many state laws in running the election that it violated constitutional provisions assigning the job for deciding how to choose presidential electors to the state legislature.
The practices to which the president objected were similar to those his campaign has previously challenged that have been in place for years and were applied to ballots across the state.