Thread by @alanfeuer

Hello.
At 10 am EST there'll be a hearing in Milwaukee for the last federal election case w/the Trump campaign as plaintiff. Yesterday judges in AZ & WI tossed the last 2 Sidney Powell kraken cases. Trump is also trying to join Texas’ SCOTUS case.
Here’s a look at today’s case:

Trump’s theory is officials in WI “ran an unconstitutional & unlawful” election chiefly in how they handled absentee ballots. Trump claims WI officials broke state law by sending out too many absentees, using drop boxes, getting rid of certifications and permitting “tampering.”

Even though the case is all about state law, the campaign says it belongs in federal court b/c WI officials violated the electors clause of the constitution & the equal protection clause by applying ballot procedures unequally.

What does the campaign want? That’s changed--even yesterday at a conference. Right now Trump wants Judge Brett Ludwig to order WI’s governor not to certify the vote except according to what the state legislature wants.
Ludwig, a Trump judge, has said he doubts that's a thing.

The state of WI and the DNC note in papers that Trump & his allies have now filed 7 challenges to WI’s vote certification since 11/12.
“Wisconsin’s presidential election is over,” they write. “Except in the courts.”

As a primary matter, the defendants say Trump is asking for “an outlandish and nonexistent remedy.” A federal judge can’t order a governor to shape his will to a state legislature. They also say Trump lacks standing to bring a suit defending the rights of WI lawmakers.

Moreover Trump’s claims are untimely and should have been brought, defendants says, before 3.2 million WI residents voted or sooner than a month after the election. The 11th amendment further bars using the federal courts to adjudicate state claims vs state actors, they say.

The defendants note all of this needs to end.

“Lawsuits like these not only are an abuse of process, they continue to…erode public confidence in our electoral system. The corrosive effects are like battery acid on the body politic. There must be an end to spurious litigation."

I'll be making periodic updates once the hearing starts.
Stay tuned.

We're coming to order in Milwaukee.

Judge Ludwig is trying to determine if we'll hear witnesses today. He wants the parties to stipulate to the facts here so that he can rule on the law. But he's been clear if they can't stipulate we may have to hear from witnesses.

The witnesses the Trump campaign wants to question are mostly state and local officials who oversaw absentee ballot procedures.

Judge Ludwig is saying he doesn't think the material facts here aren't in dispute and he wants the parties to agree so he can hear arguments on legal issues.

We're going to take a short break so the parties can confer.
Then Judge Ludwig will decide on oral testimony.

Parties are saying they should be able to reach a stipulation on the facts in another 10 minutes. So we're still in recess...

We're back in Milwaukee.

The parties have reached an agreement about the facts to avoid witnesses. It's basically a list of what happened procedurally before & after the election with publicizing the rules for absentee ballots, handling the ballots, how many were issued, counted etc.

Judge Ludwig now wants arguments on the law to help him figure out what to do. Plaintiff first, he says.

One bit of advice to the parties:
"What I'd like to do is limit the political theater as much as we can," Judge Ludwig says. "What I'm trying to do is apply the law to the facts here in the most efficient way."

William Bock goes first for the Trump campaign.
He says the case is about new methods of voting that aren't in state election code--things like absentee ballot drop boxes and changes in the state's photo ID law. It was an illegal plan to maximize absentee ballots this year.

Note: This is not a case alleging fraud.
This case charges state & local elections officials with not following state election law.

Bock says drop boxes are illegal under state law. And yet the state election commission used them.
Election officials "pushed an absentee ballot election"--the least secure method of voting, Bock says.
Implied of course but not said (yet) is that absentee ballots helped the Dems.

Election officials also widened the exception to the state's photo ID law, Bock says, effectively gutting the law.

These measures "dramatically lowered the guard rails," making the vote more susceptible to fraud, Bock says.
He doesn't claim that any fraud actually occurred.

The facts here, as Judge Ludwig said, aren't really in dispute.
WI used drop boxes. It allowed many people to submit them w/o photo ID restrictions. Etc.
The questions are:
Did that violate state law?
Does Trump have standing to make this challenge?
Is it a federal issue?
Etc.

And even if all the above are answered in Trump's favor can he effectively void Wisconsin's entire election after it already took place?

Bock's argument is basically:
Ballot drop boxes are never mentioned in state election code.
They're inherently dodgy.
WI officials set them up months ago with somewhat hasty procedures.
Therefore, weeks after the election, the vote should be nullified.

Bock is now making a similar argument regarding the expansion of a measure waiving need for photo IDs.
The law says only people who are "indefinitely confined" don't have to show IDs but this year election officials b/c of COVID let more or less anyone avoid showing IDs.

Again Trump's lawyers aren't claiming that fraud occurred in this year's Wisconsin election. They're claiming changes in voting procedures--put in place because of a global pandemic--made fraud (possibly) more likely.
Ergo, after the election, we need to nullify the entire vote.

Now Bock is saying some clerks in some places took it upon themselves to fix some absentee ballots w/minor flaws, say, w/missing addresses. This is illegal, he says, but doesn't say which clerks, which places or how many ballots.

By the way, the Wisconsin Supreme Court, arguably a better arbiter of Wisconsin state law, considered many of these same arguments earlier this month and ruled against the Trump campaign.
It remains unclear why a federal court is better positioned to rule on Wisconsin law.

Bock is actually raising the Texas SCOTUS case now to argue how important this WI case is.
Other states are concerned, he says, that WI didn't follow the rules and the playing field wasn't fair.

He's going to talk about standing now.
Trump was denied the right to have his electors appointed in a "lawful" manner, Bock says, and has therefore suffered an injury.

Bock is on to remedy.
He wants a judicial finding that WI's election failed and an injunction against the governor to issue a certificate of determination for WI's electors. That, he says, will open the way for the state legislature to appoint its own slate of electors.

Bock is saying that this election was illegal and that no one has a right to vote in an illegal election and therefore we need to scrap the entire election and let the state legislature pick the winner.

"The election is Wisconsin was a failed election and therefore of no legal consequence." --William Bock, trump campaign lawyer.

That's a breathtaking statement.

The president's lawyer is, believe it or not, comparing this case which seeks to nuke the entire election in Wisconsin and let the state legislature impose its will for the will of the voters to cases like Brown v Board of Ed & Loving.

That's wildly cynical.

Trump's case is done.
Judge is going to grab a sandwich.
When we return we'll hear from the state & local defendants and the intervenors, DNC & NAACP.

Back in an hour.

We're back in Milwaukee.
Jeff Mandel will speak for defendant Gov. Tony Evers.

Mandel starts by noting that the rules governing the election were in place before Election Day and that no one is disputing that people ran the election in good faith.
Trump is asking for an "act of judicial fiat" to overturn this race.

Mandel is now quoting remarkable language last week from a conservative judge on Wisconsin's Supreme Court.
“Judicial acquiescence to such entreaties built on so flimsy a foundation would do indelible damage to every future election. This is a dangerous path..."

Mandel calls Trump's request here "profoundly anti-democratic."

He also notes that Trump has changed his requested relief twice in court: first he wanted Judge Ludwig to simply bounce the election to the state legislature; now Trump wants the whole election voided with no proof, he says.

Trump never challenged any of the election provisions he complained about until he lost the election, Mandel says. Now he's asking a court that has no jurisdiction "to grant unheard of relief."

Mandel says the drop box issue was known for months before the presidential race. WI used drop boxes in two prior elections in April & August.
"If the president had a problem with that practice he should have made an effort to challenge it," Mandel says.

As for the provision allowing corrections to absentee ballots, it was publicly know, Mandel says, in Oct 2016 before the last presidential election--which Trump won.

"They wanted to know if the president won the election," Mandel says. "Because if he did, they wouldn't sue."

Mandel is suggesting that all of these ballot procedures should be decided in a state court and in fact some of them are currently being litigated in state court.

We're on to the 11th amendment bar on going after state officials for state law violations in federal court...
(These same legal theories have cropped up in multiple cases across the country.)

Basing this claim on Article II (which says that state legislatures has the right to run elections) would essentially set the wrong precedent that any election challenge could be litigated in federal court, Mandel says.

Equal protection? Nope, Mandel says.
Trump isn't a WI voter who was treated unequally and he can't disenfranchise millions of actual WI voters.

Mootness: "The court can't give President Trump the relief he seeks," Mandel says.

"This ship has already sailed," he adds, quoting a Michigan federal judge who shot down one of the kraken suits this week.

Colin Roth is now up for the other state official defendants.

Roth says WI election laws were followed in the election. The results were secure, the count was accurate, he says, confirmed by recounts.
The problem is Trump didn't like the absentee procedures. But they did follow the law and disputes about them don't belong in federal court.

The Wisconsin Election Commission is bipartisan, Roth says, overseen by three Republicans and three Democrats. So it's absurd, he adds, that the commission used the new procedures to throw the election to Biden.
"Nothing is hidden and there is no partisan agenda," he says.

Drop boxes aren't new or partisan, Roth says, & have been used all over the state, not just Dem strongholds.
Roth notes that Justice Gorsuch actually commended WI for its use of drop boxes in a recent decision.
Counsel for the WI legislature itself called them lawful, he says.

Roth is step by step debunking the notion advanced by Trump's lawyers that the new absentee ballot procedures were thrust upon WI this year as some kind of partisan lever to deny votes to Trump.

Roth passes off to Jon Greenbaum for the NAACP which has intervened in the case.

Greenbaum reminds Judge Ludwig that this case is an attempt to throw out 3.5 million votes, part of an effort by Trump around the country to do same in other states.
"We've seen a strategy to go after the black vote," Greenbaum says, citing legal efforts targeting big cities.

This case has focused on Milwaukee and Dane counties, the two counties with largest black populations, Greenbaum notes.

Greenbaum is chiding Trump's lawyer for comparing this case to Brown v Bd of Ed and Loving v VA.

"It's frankly patently offensive to compare the effort...in this case to the others," Greenbaum says.

Defendants rest.

We're taking a 15 minute break and Judge Ludwig will come back with some questions.

Judge Ludwig starts w/a question for defendant lawyer Jeff Mandel.
If there's been a departure from a legislative scheme doesn't he have jurisdiction to make that determination under Art II, section 1 of constitution which gives state lawmakers power over elections?

Mandel notes that Bush v Gore, which Ludwig quoted, was a narrow reading of that clause and was "a ticket for one ride only" in that single case.

Judge Ludwig is very close to asserting jurisdiction under Art II, section 1 here to at least entertain the question if the state officials in WI departed from state election law.

Now a question for Trump lawyer William Bock.
Judge notes that WI legislature has chosen to appoint electors thru a popular election. Isn't that simply enshrined in the law?

Isn't there a difference b/t a legislature picking the manner of an election--popular election--and the procedures by which it's implemented? Those procedures, Ludwig suggests, are different and can be left to others than the legislature itself.

Bock argues that the new absentee ballot procedures were so significant that they're more just a process.
Well, Judge Ludwig says, "Saying it's significant doesn't make it significant."

"I don't think I heard a very good explanation today about why the plaintiff"--Trump--"didn't raise these issues before the election," Judge Ludwig now says.

Judge Ludwig recalls that Bock said Trump didn't raise the issues he's complaining about now before the election b/c so much was going on with elections in all the 50 states.
"That strikes me as incredible," the judge says.

Judge Ludwig wraps up, saying the federal jurisdiction issues here are challenging and unique--he thanks his law professor who was an expert on them.
He says he'll get a decision out in the next day or so.

Hearing adjourned. Out.