Thread by @AkivaMCohen

OK, #squidigation fans. This is a new Wisconsin case not filed by the Krake[n/d] team of Powell and Wood and NOT focusing on wild conspiracy theories. It's a competent and professional filing that raises things that would be real issues ... if you don't understand why they aren't

https://twitter.com/marceelias/status/1333808399901974535

So buckle up, thread incoming

FYI, this is NOT the Wisconsin version of the squidigation, which Powell's merry band of fuckups appears to have ALSO filed today in Wisconsin, this time after running a spellcheck and investing in those new-fangled "space bars" cc @questauthority democracydocket.com/wp-content/upl…

Here's the link to the brief for this rather more competent and - dare-I-say-it? - not-batshit-insane Wisconsin election challenge democracydocket.com/wp-content/upl…

A procedural note: the plaintiffs here are Trump, Pence, and the Trump Campaign, and they are asking the Wisconsin Supreme Court to take original jurisdiction of the action: basically, "let us try the case to you, instead of the lower courts". Wisconsin law allows this

Here's the TL;DR of what they are arguing:

1) Wisconsin law, unlike Pennsylvania law, is pretty fucking draconian in how it treats absentee ballots. The legislature expressly said "we don't really trust this absentee thing, we're concerned about fraud, so ...

all of the various procedural bells and whistles we added in the process for absentee balloting? They're mandatory, and you ABSOLUTELY CANNOT count a ballot that doesn't do all those things. And you can't certify a count containing those ballots."

2) Milwaukee County and Dane County said "screw that, we're gonna ignore the procedural requirements and count the ballots anyway"

3) That's pretty obviously illegal, so you need to order those counties to void their certifications and recount with those ballots excluded

These are competently pled allegations of specifically defective ballots, seeking limited relief that is related to those ballots.

It's a real case - assuming the allegations are supportable.

Diving in - REALLY diving in, as you'll see - they don't seem to be

One further note: The Wisconsin Supreme Court is *notoriously* partisan; it splits on party lines often, especially on political cases. There's real cause for concern that they may do that here, IMO. This is the single realest election challenge of the cycle

So, here are the issues. As you can see, there are basically 4 issues (the highlighting shows the duplications):

1) Absentee ballots without written applications
2) Absentee ballots with incomplete certifications
3) "Indefinite confinement" status
4) Democracy in the Park

Let's take these 1 by 1. Wisconsin's statutes *require* that a voter who wants to vote absentee must apply to a clerk for a ballot by written application. (6.86(1)(a) if you want to check). law.justia.com/codes/wisconsi…

The Petition alleges that Milwaukee and Dane counties nonetheless issued and counted at least 170,140 absentee ballots without a written application (way more than Biden's margin, which is about 20K)

In addition, an absentee ballot certification needs to be signed by a witness, who provides their address. On roughly 5500 ballots, the address was missing and the clerk filled it in.

Also, Wisconsin requires that voters applying for absentee ballots show ID, unless they certify that they were "Indefinitely Confined". Roughly 28,395 ballots were cast by people who claimed that status who - the Petition says - were no longer entitled to do so.

And last, 17,271 ballots were received at "Democracy in the Park" events, which the Petition claims is not allowed by Wisconsin law

Given the Wisconsin Legislature's express "do not count" directive, if these defects are real they are significant and could justify overturning the Wisconsin election results - particularly the first issue, since it impacts 170K ballots and could've swung the election. Are they?

The answer to the first issue appears to be "no." Let's get into it.

The claim that the absentee ballots were issued without an application is based on the argument that the ballots were issued during Wisconsin's 14-day "in-person absentee" window: voters showed up, filled out a form, voted, and handed their ballot to the clerk

Wisconsin has an absentee ballot application form, EL-121, that voters can use to apply for absentee ballots. Clerks in Milwaukee and Dane, but not other counties, didn't require it; they simply used form EL-122, and said that was good enough

Sounds like a problem, right?

Well, go take a look at Form EL-122, which is put out by the Wisconsin Election Commission. Notice anything?

elections.wi.gov/forms/el-122

Here, I'll highlight it for you

That's right, Form EL-122 is, *expressly and officially* an absentee ballot APPLICATION and certification

The campaign is essentially arguing that the official Wisconsin form is invalid, or that clerks wrongly issued the ballot *before* receiving the form from the voter

Now, the campaign argues vociferously that EL-122 is not, and cannot be, an application, for various reasons. The statute mentions applications and certifications separately. The application has to be maintained by the town clerk, and the certification can't be.

But NOWHERE does the campaign deal with the basic fact that Form EL-122, published by the Wisconsin Election Commission, expressly identifies itself as a combined application and certification

In light of that, I think this claim is dead letter. For one thing, nothing in the statutes requires the application and certification to be on two separate forms. They are *discussed* separately, because they do separate things. But they can be on one piece of paper

Yes, the issue of the clerk's obligation to retain the application and send on the certification is an issue. But (1) that can be harmonized by having the clerk get the application back after the count is done; and (2) that's a procedural requirement FOR THE CLERK, not the voter

So even if the clerk is violating their duties by handing the voter a single-page ballot-application-and-certification, meaning the clerk won't be able to maintain the application as required by law, that's not a failure BY THE VOTER to have submitted a written application

And, since the voter did THEIR job and submitted a written application for the absentee ballot, the vote must be counted. Especially when it was an official election form. I could see the Wisconsin Supreme Court specifically ordering that form not to be used going forward. But...

even an overtly partisan court is unlikely to find that 170K votes don't count because the voters used state-provided forms. And if they did find that, there'd be a constitutional issue of disenfranchisement that would likely be reversed by SCOTUS, IMO

OK, that's issue No. 1. What about issue 2: the incomplete certifications? Here's the background, as laid out by the Plaintiffs

And here's the training video they reference, cued up to the relevant part:

This seems to be a substantive issue, on which reasonable arguments can be made in either direction. The Wisconsin statute (6.87(6d)) does say that a ballot without the witness's address cannot be counted docs.legis.wisconsin.gov/statutes/statu…

The statute does NOT say, however, that the witness address needs to be written by the witness or the voter - just that it needs to be there.

Which, concededly for these ballots, it was.

And btw, there's nothing indicating that the witness address wasn't added in the presence of the voter. I.e.:
Clerk: I need your witness address.
Voter: Shit, I don't have it. I know he's on Oak Street
Clerk, checking the rolls: I have someone by that name at 422 Oak
Voter: Yes!

And then the clerk adds the address, in red ink.

But more fundamentally, our old friend Laches will come into play. That training video I linked earlier? Check the date it was published: April 1, 2020. These are the procedures that were used for the primary in April.

They weren't challenged until after the election. That'll be a problem for the Trump campaign. But let's say those 5500 votes are in play.

Next category: Absentee ballots from people who self-identified as "Indefinitely Confined"

This was the subject of prior litigation, Jefferson v. Dane County, when Dane County announced that voters counted as "Indefinitely Confined" under the governor's "Safe at Home" order

The Wisconsin Supreme Court issued an order on March 30 - I can't find it online, and if anyone has it I'd appreciate it - saying "no, that's not a valid interpretation of the statute."

But in that same order, the Wisconsin Supreme Court directed the county clerks to adhere to the guidance published by the Wisconsin Election Commission:

Basically: "Indefinitely confined" is a self-certified status, and there is no requirement or ability for clerks to investigate claims by voters that they were "indefinitely confined".

Plaintiffs are now arguing that the Clerks didn't do enough to strike indefinite confinement status and that everyone who applied for that status after March 25 (when the counties said "anyone can have it") and didn't have an ID on file shouldn't be counted

They are NOT, however, providing any basis to find that even a single one of the roughly 28,400 voters in that category were not, in fact, qualified under Wisconsin law for Indefinitely Confined status

In the absence of that type of evidence, I think this one is dead as a doornail. You can't just assume that all - or any - of those 28K plus voters submitted improper certifications, just because the county clerks gave bad advice over a 5-day period in March 2020.

I mean, maybe it's just me, but this should be obvious, no?

That brings us to the last category - the 17K-and-change Democracy in the Park votes.

Note: Gotta take Littler Girl to a doctor's appointment in a bit, so I may need to take a break and come back to this thread soon. If the tweets die out midstream, that's why

Also, thanks to an eagle-eyed reader who found that Wisconsin Supreme Court order (I won't tag him because it'll blow up his mentions, but if you want to say thank you, check the replies to the tweet where I say I can't find it) wpr.org/sites/default/…

Actually, gonna take that break now and come back to do the Democracy in the Park stuff. Looks like I need to do some underlying research before I say anything on these claims, anyway

A key point on Laches - and if so this is (I think) dead letter as well

https://twitter.com/PamBorgelt/status/1333864986070888453

OK, let's talk Democracy in the Park. On September 26 and October 3, the city of Madison, Wisconsin held an event (can you guess its name?) at which voters could drop off completed absentee ballots to employees of the Municipal Clerk's office at any Madison Park.

The GOP threatened to sue, but never did. And a voter declaratory judgment action (basically, asking the Court to declare that the event was legal) was dismissed since the named defendants weren't saying otherwise madison.com/wsj/news/local…

At the event (and this will become absolutely critical) Madison did NOT distribute ballots. It only accepted them.

The campaign claims this violated Wisconsin election law, and 17K ballots delivered at that event should be cancelled.

It is, flatly, wrong.

Domestic duties call, brb

Sorry, Little Man needed Honey Nut Cheerios.

Where was I? Oh, right. The campaign being

Let's start with that Olson v. Lindberg case the campaign cites. Case citations generally work like this: Case Name, [volume, reporter, and first page where you can find the case] (Court and Year) (Parenthetical explaining what the case said or why it matters)

Here, the reporter (Wis.) and the absence of a court name "(1957)" tell us it's a Wisconsin Supreme Court case. That - if the case is what they say it is - would be very bad for Wisconsin voters who delivered ballots at Democracy in the Park

BUT ... you might have noticed that the parenthetical referenced that decision coming down under a "prior version of the statute." I certainly did. So I went and found that case. Here's how it describes that prior statute:

The issue in that case was that the town clerk, rather than mailing the ballots to voters or giving them to voters in his office, had personally brought ballots to the voters and then (presumably) took their votes from them.

Based on a statute that said that ballots not mailed or personally delivered at the office could not be counted, the court invalidated the votes.

But here's the thing. The *current* version of the statute? It has NO PROVISION AT ALL that limits where the relevant clerk (or employees of the clerk's office) can collect absentee ballots

Section 6.87 provides the procedure for absentee voting. Here's what it says

1) On getting an application, the clerk will initial the ballot and verify the ID.

2) The clerk puts the ballot in an unsealed envelope w/ a voter certification on it

law.justia.com/codes/wisconsi…

3) The clerk must either mail the ballot to the voter or personally deliver it at the clerk's office or at an "alternate site under Sec. 6.855." If it's personally delivered, the ballot MUST be voted at the office/alternate site; it can't be taken out of there.

4) The voter then makes the certification in front of a witness, marks the ballot, folds it and puts it in the envelope, and mails it OR DELIVERS IT IN PERSON TO THE CLERK ISSUING THE BALLOTS

5) Details for voters who can't read
6) The ballot must be "returned so it is delivered to the polling place by 8pm on election day" and ballots "not mailed or delivered as provided in this subsection may not be counted"

So let's put that all together:

1) The absentee ballot can either be mailed to the voter or personally delivered in the clerk's office/alternate site
2) If personally delivered, it has to be completed then and there
3) If mailed, it needs to be returned *to the clerk*

There is only one situation where the statute mentions the clerk's OFFICE (or alternate site): Where the clerk hands a ballot to the voter.

Where a ballot was mailed, in contrast, the statute says it has to be returned to the CLERK but doesn't mention where

So, as far as I can tell, the Madison event was entirely legal: Voters returned their ballots to the clerk, they just did so at tables in the various Madison parks.

The Campaign, of course, disagrees. They argue that the park can't qualify as an "alternate absentee ballot site" under 6.855, because those need to be designated by the municipality, and there can only be one. That didn't happen here, and they are right it's not an alt site

They also argue that 6.87(4)(b) requires the ballot to be returned by mail or "delivered in person to the clerk's office".

But as you just saw (and I'll include it again), that's not what the statute says. It says "delivered in person to the municipal clerk issuing the ballot"

So this looks like a flat misread of the statute, which has been amended since the Olson decision they are relying on and no longer requires personal delivery to the clerk's *office*

Even if not, our friend laches will pop back up to have a word - this event happened in September and early October, and the campaign waited until after the election to challenge this, when it could have attacked it before and people would've known to vote again

In my view, this claim should fail.

Of course, the Wisconsin court may have a different view, especially given their partisan track record. But between laches and a careful reading of the statutes, I wouldn't expect *any* of the challenged votes to be invalidated

Update: the DNC has filed a responsive brief that essentially nukes this case from orbit

In addition to all of the merits stuff we discussed in this thread, there are about seven procedural reasons this case is dead

And they backed up the merits stuff with citation to relevant case law, which is what you would do if you were doing a brief on these things.

Not going to do another full thread on the response. But I will say it's kind of gratifying to see that I didn't completely screw up my merits analysis given that I was looking at these issues for the first time over a few hours today