The Wisconsin Supreme Court’s incredulity over the Trump lawsuit

In a 5-3 vote, the Wisconsin Supreme Court yesterday threw out yet another Trump legal challenge to the election. Such actions by courts around the country have become so routine as to be hardly worth noting, though if one is counting, there have been 46 such losses by Trump and his allies.

What I want to highlight is the incredulous tone of the majority opinion issued by justice Brian Hagedorn of both the merits of the challenge and the asked for remedy.

The Wisconsin Voters Alliance and a group of Wisconsin voters bring a petition for an original action raising a variety of questions about the operation of the November 3, 2020 presidential election. Some of these legal issues may, under other circumstances, be subject to further judicial consideration. But the real stunner here is the sought-after remedy. We are invited to invalidate the entire presidential election in Wisconsin by declaring it “null”—yes, the whole thing. And there’s more. We should, we are told, enjoin the Wisconsin Elections Commission from certifying the election so that Wisconsin’s presidential electors can be chosen by the legislature instead, and then compel the Governor to certify those electors. At least no one can accuse the petitioners of timidity.

Such a move would appear to be unprecedented in American history. One might expect that this solemn request would be paired with evidence of serious errors tied to a substantial and demonstrated set of illegal votes. Instead, the evidentiary support rests almost entirely on the unsworn expert report of a former campaign employee that offers statistical estimates based on call center samples and social media research.

This petition falls far short of the kind of compelling evidence and legal support we would undoubtedly need to countenance the court-ordered disenfranchisement of every Wisconsin voter. The petition does not even justify the exercise of our original jurisdiction.

Nonetheless, I feel compelled to share a further observation. Something far more fundamental than the winner of Wisconsin’s electoral votes is implicated in this case. At stake, in some measure, is faith in our system of free and fair elections, a feature central to the enduring strength of our constitutional republic. It can be easy to blithely move on to the next case with a petition so obviously lacking, but this is sobering. The relief being sought by the petitioners is the most dramatic invocation of judicial power I have ever seen. Judicial acquiescence to such entreaties built on so flimsy a foundation would do indelible damage to every future election. Once the door is opened to judicial invalidation of presidential election results, it will be awfully hard to close that door again. This is a dangerous path we are being asked to tread. The loss of public trust in our constitutional order resulting from the exercise of this kind of judicial power would be incalculable.

I do not mean to suggest this court should look the other way no matter what. But if there is a sufficient basis to invalidate an election, it must be established with evidence and arguments commensurate with the scale of the claims and the relief sought. These petitioners have come nowhere close. While the rough and tumble world of electoral politics may be the prism through which many view this litigation, it cannot be so for us. In these hallowed halls, the law must rule. [My italics-MS]

It should be clear by now that these cases are not being brought with any hope of winning them. They are just fund-raising measures the appear to be quite successful in that people have contributed over $200 million to the legal defense cause, not realizing that most it goes into a slush fund for Trump to use as he wishes.

The Trump campaign, the Republican National Committee, his two joint fundraising committees and the president’s leadership committee, Save America, raised over $200 million since Election Day. Save America will likely be used to fund any political initiatives Trump is planning after he leaves the White House, including possibly running for president again in 2024.

Reuters reported last month that large chunks of contributions are, in fact, not going toward efforts to overturn the election results and instead are going to Save America or the Republican National Committee. The fine print on the Trump election defense fund donation page says that “75% of each contribution [goes] first to Save America, up to $5,000,” suggesting that a majority of contributions to the legal matter actually go to Trump’s committee for other purposes.

‘Other purposes’ are likely to include going directly into Trump’s pockets or indirectly via his properties.

Grifters gotta grift.


  1. johnson catman says

    Think about how much help that $200 million could be to people who have lost their jobs due to the Coronavirus that The Orange Toddler-Tyrant has ignored and downplayed. And I guarantee that if any of those who contributed to the slush fund were asked to donate anything to help the downtrodden, they would scoff at the idea.

  2. Ridana says

    Yeah, who were those three who saw merit in this case? Did they write a dissent like the USSC does?

  3. Mano Singham says


    I you look at the link that I gave to the opinion, at the end there is the dissenting opinion which does not say that the lawsuit should be upheld but argues that the court could have agreed to hear the legal issues involved even if the factual issues had not been adjudicated.

  4. johnson catman says

    re Mano @4: IANAL, but that makes no sense. If there are no facts to support the case, what difference could any legal issues make to the case?

  5. says

    Cheetolini has been demanding a refund of the $3 million it cost to do a recount.

    If a college applicant isn’t qualified and gets rejected, they don’t get a refund. It’s the same with the electoral college.

  6. says

    The minority opinions matter greatly in all this.

    One of the historical truths of the 1954 Brown v. Board of Education is that Chief Justice Earl Warren sought and obtained a 9-0 decision because he understood that even one dissenting vote would critically undermine the court’s decision. Many do not remember that Warren was selected by President Dwight David Eisenhower and that prior to his appointment to the bench Warren, also a Republican, had been governor of California.

    That any members of the courts dissent from verdicts casts a shadow of doubt over the court’s decisions.

  7. Mano Singham says

    johnson catman,

    What the dissent said was that the court should have decided if the legal issues merited consideration. If so, then they would sent the case back to the lower courts to decide on the facts of the case.

    It is all very unusual. In normal times, the lower courts decide on the facts of the case and pass a verdict using the relevant laws. The appeals courts take those facts as a given and only look at the legal and constitutional issues. But Trump’s lawyers want a quick verdict in their favor and they cannot get that in the normal process because a lower court trial that weighs all the evidence could take months. So they have been trying to bypass that by arguing that sufficient doubt exists about the validity of the election and seeking a summary ruling halting the certification of the results, and they keep failing.

  8. johnson catman says

    re Intransitive @6: FUCK HIM! He has used the legal battle as a means of raising huge sums of money. That $3 million is a spit in the bucket to what the rubes have sent him. I hope Wisconsin officials tell him to fuck off and he gets NOTHING.

  9. johnson catman says

    more re Intransitive @6: He demanded a recount and they smartly demanded payment from him up front. They did the recount, fulfilling their duty that they were paid to do. He wants his money back because they didn’t produce the outcome he wanted (because they did an honest recount). If they had not demanded the money before-hand, he would have fucked them over and not paid, as is his usual MO. In the future, EVERYONE who does any work for him should require the money be paid in advance.

  10. Ridana says

    Even if they had returned a recount that was miraculously in his favor, he still would’ve complained that they didn’t find all the votes for him, and either demanded a refund or refused to pay had they not required it up front.

  11. DanDare says

    These actions appear to be outright contemp of the legal system. As such I’m suprised there is not a punishment for bringing them.

  12. mediagoras says

    DanDare @12: I agree. From the Rules of Civil Procedure:

    Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions
    Primary tabs

    (a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name—or by a party personally if the party is unrepresented. The paper must state the signer’s address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention.

    (b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

    (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

    (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

    (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

    (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

    (c) Sanctions.

    (1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.

  13. mediagoras says

    BTW, Wisconsin’s analog to the Federal Rule 11 is Wis. Stat. s. 802.05 Signing of pleadings, motions, and other papers; representations to court; sanctions.

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