Thread by @AkivaMCohen

OK. I promised you a thread on the Wisconsin dissents, so here it is. Tl;dr: They are bad and their authors should feel bad

First, a quick spin through the majority/concurrences

The majority opinion was written by Brian Hagedorn, who joined the Wisconsin Supreme Court after serving as Chief Legal Counsel to Republican Governor Scott Walker. He also wrote a concurrence to his own majority opinion which ... um ... I've never seen before

In fact, let's ask some of the appellate specialists if this is just me not knowing enough. Hey, @RMFifthCircuit, @MatthewStiegler, @CecereCarl - you ever see a judge write a concurrence to his own majority opinion before yesterday?

The majority opinion is relatively direct in demolishing the Trump Campaign's arguments. The claim that all votes that used "indefinitely confined" status in Milwaukee and Dane should be tossed gets the AYFKM it deserves: "no basis in reason or law"

That was absolutely well deserved. The Trump campaign's argument was, literally, "we think some of these 28,000 votes were illegal, but we can't tell which and don't want to try to challenge individually. Can you just toss them all?" To which the only appropriate reaction is:

No. We can't "just toss them all." Fuck you.

Next comes everyone's favorite post-election hit, Laches Laches Laches

For the "laches don't apply to elections" crowd - tell that to, well, EVERYONE.

Seriously, look at this list of courts saying "no, assholes, you can't play the game, see if you win, and THEN challenge the rules because you lost". It's a 2-page long footnote!

Why spend 2 pages saying, essentially, "look, you idiots, this rule has been in place in states all across the country since as far back as the 1930s?" Isn't Adam Sandler right?

Well, wait for the dissents

Not going to run through the full application of laches in the opinion here, other than to say it's goddamned obvious. All of these "issues" were known before the election; some had been in play since 2010, others 2016. A post-election challenge is straight garbage, because

All of this. Including the invocation of trumpa-twitter's favorite (only known) election case to point out that counting votes in some counties and throwing out identical votes in other counties is unconstitutional

That's it for the majority

Karofsky and Dallett have a short concurrence saying "Trump is publicly claiming fraud but nothing in this case even alleges it. The vote was fair"

Then comes Hagedorn's concurrence, where he basically says "even without laches, Trump loses because his claims aren't valid"

On written ballot applications:

Wisconsin law requires one. Voters filled out an *official* form called "ballot application" before receiving a ballot. That's all they needed to do, you shameless fuckheads

Witness addresses: A theoretically valid complaint about SOME ballots, but the campaign didn't provide any evidence about how many ballots didn't have a valid address before the clerks added information

That's important, because if the number of challenged ballots was less than the margin of victory - and with only some of the "clerks added to address info" ballots at issue, it was - the case is moot as an election challenge.

Hagedorn does pointedly suggest the WEC change its guidance moving forward, though

Last, the Democracy in the Park events. Hagedorn basically writes what we discussed in our thread on the case when Trump filed it: These ballots *were* returned, in person, to the clerk

He even quotes the statutory definition of "municipal clerk" in the statutes - something I didn't find in my earlier thread - which EXPRESSLY defines it as including the clerk's "authorized agents"

This really should settle the issue.

Somehow, it doesn't, for the dissents.

Keep an eye out for how they address this "municipal clerk" issue

Last, Hagedorn disposes of the "alternate absentee ballot site" argument. Again, watch for how the dissents address this pretty basic point

Now, to the dissents.

But first, a lawyerly interlude on how I read cases. Generally speaking, dissents are very valuable. They highlight weaknesses in the majority's arguments, areas where what seems like a slam dunk on the main opinion gets closer and closer after the dissent

Dissents don't always persuade me that the majority got a decision wrong, but they often make me think very very hard about whether they got it right.

These dissents ... are not that. Not by a fucking country mile

We start with the dissent by Chief Judge Patience Rogensack who seems to think that the primary source of Wisconsin law is ... Chief Judge Patience Rogensack.

Seriously, count the number of times she cites her own dissents as we go through this. But ...

I have a client call starting in a moment, so we'll return after a brief break

OK, back for Roggensack (two g's, sorry for the misspelling, your Honor).

She starts off by saying "perception is important, so I'd get to the merits" while simply lying about Hagedorn's concurrence ...

So ... not a good start, Judge

Roggensack points to two challenge areas she would grant: witness addresses and Democracy in the Park. The challenges on indefinitely confined voters and the "Application" form are apparently too much even for her

Also, she drops a footnote about how "reasoning is more important that the results" - perhaps implying she wouldn't have granted the Trump campaign relief in this election? But if so, this should have been a concurrence, not a dissent. So I think this is makeweight

On to the analysis. She starts with "WEC guidance can be wrong" - quoting herself

Here's judge Roggensack on witness addresses: The law requires witness addresses. Ballots aren't to be counted without them. The WEC guidance is wrong

Here's the rest of the section on witness addresses. Some things to note:

1) Oh, hey, I guess you ARE in favor of throwing out ballots

2) Notice her response to Hagedorn's point (that there's no evidence that any ballots had insufficient addresses, because there's no definition of "address" in the statute)? You may have missed it, so here it is again

3) But the thing that really gets me steaming is that last point. I'll reattach it:

No reliance interest in WEC guidance? You're saying that voters don't have a legal right to vote in line with the directions of the State entity, created by Wisconsin statutes, and imbued by the legislature with the *specific power* to issue those directions?

Are you fucking kidding me?

Seriously, do you all grasp what she's saying? John Smith heads down to his local clerk's office to vote for Trump. Follows the specific directions he's given for how to cast that vote, in line with LONGSTANDING rules nobody challenged. Casts his vote

But it won't be counted because after the vote some Biden fanboy wants to say that the rules should have been different?

No. Fuck no. That's unamerican & unconstitutional. The right to vote includes a right to have your vote counted, & election laws can't be traps for the unwary

Voters ABSOLUTELY have reliance interests in guidance issued by the entity tasked with overseeing the elections, and Roggensack's rejection of that notion is staggering and awful.

This isn't a game. It's a fundamental right, and it can't be abridged so casually, Judge

Written applications: Yes, schmucks, the official state "Application" form qualifies.

Indefinitely confined: No, we're not invalidating the votes of the entire class of voters based on your claim that some unidentified portion of them claimed the status illegally.

But ...

What the WHAT was that ending? "You didn't give us any evidence we could use to invalidate any specific votes, THEREFORE I GO NO FURTHER IN ADDRESSING THIS?"

I'm sorry, Judge, but were you high when you wrote this? Did you get into the edibles?

Generally speaking, when a litigant comes to court without the evidence for the relief they're seeking, the court doesn't say "ah, well, I guess I won't rule"

It fucking denies the claim

For someone who opened her opinion writing about how important perception was, this certainly gives the perception of favorable treatment for her preferred political candidates

Now democracy in the park. Here's the sum total of Roggensack's response to Haggedorn's point that "people the municipal clerk authorizes to collect ballots are agents of the municipal clerk": "No, that would be crazy"

I shit you not.

She drops a footnote to another Wisconsin case to say "you sure you want them to be your agents". Here's what that case said about what makes someone an agent. And also the City Clerk being part of running the event in question

I mean, this is an explicit designation by the City Clerk's office that poll workers accept absentee ballots on its behalf, which - under the Lang v. Lion's Club case Roggensack cites, CLEARLY makes those workers the City Clerk's agents.

Does she just disagree with the standard?

Oh, oops. I guess not.

Seeing as how, you know, she WROTE that decision

I'm sorry, but where your discussion of an outcome-determinative issue is "of course they weren't agents" without specific analysis given a standard that you wrote that makes them pretty clearly agents, you're a fucking hack. This dissent is politics, not judging.

That's it for Roggensack; she would have tossed out the 17K democracy in the park ballots and the ~5500 ballots with witness address issues. That wouldn't have been enough to swing the election (Wisconsin has an insane "drawdown" provision where they randomly toss X votes)

But holy hell would it have been bad.

That, my friends, was the BEST of the dissents

On to Ziegler. She starts, basically, by saying "well, so what if every other state to consider similar issues has raised laches, for obvious reasons. Were they considering *Wisconsin* law? Well, were they?"

This is incoherent. There's nothing unique about Wisconsin law that makes laches particularly inapplicable. It's handwaving and "I don't wanna" of the highest order

This reads like an angsty teenager's badly written protest note to her parents. What the hell even is this?

Hagedorn didn't "default to laches" because anything else was "just not possible". He held that laches barred the claims because invalidating votes based on them would have been inequitable, unjust, and *likely unconstitutional*

Laches as a "previously unknown doctrine"? Here's what Westlaw tells me about the number of Wisconsin Supreme Court Cases ALONE that mention laches.

Oh, by the way, that first case in the search? The one denying relief to a prisoner alleging ineffective assistance of counsel, on the basis of laches?

Guess who voted with the majority on that one

"Look, I didn't mean the DOCTRINE of laches was unknown. I just mean that it's crazy to apply it to Republican politicians, instead of just felons we don't care about as people" - Justice Ziegler, probably

SureJan.gif

Ziegler next misstates the holding of another case, claiming the Wisconsin Supreme Court relied on laches in a pre-election case about whether a candidate could be added to the ballot after ballots had gone out.

It didn't. Here that is, side by side with Ziegler's description

That's not laches. That's *expressly* not laches. It's mootness and redressability, due to the timing of the case. I understand that keeping these doctrines separate is tough for laymen and law students, but you're a fucking justice of your state's supreme court!

Now she says that laches shouldn't apply. Why?

I hope you're sitting down

According to the judge, laches NEVER bars ANY challenge to ANY election rule; candidates are free to let voters vote, stand by the rules if they win, and challenge ballots cast in accordance with the rules if they lose

This is - to put this as gently as I can - infuckingsane. This is madder than two rabbits in a sack with only one carrot. I mean, can you imagine the outcomes this would incentivize? Candidates would be NUTS to challenge any ballot rule in advance of the election.

Every election would come with a free "play again" option; just challenge one or two election rules after you lose, so that you can force a re-vote. It is fundamentally impossible for any person of good faith to believe this is how things should operate

She gets no better on the subject of knowledge. Wisconsin law says that for laches to apply, you have to not have known the issue would be raised. Did Wisconsin and its voters know that the Trump campaign would be challenging decade- or years-old rules? Take it away Judge

"You knew they would be challenging some ballots. Trump tweeted about it after the election"

That doesn't put a single voter or the Biden campaign on notice, AHEAD OF THE ELECTION when they could have done something about it, of what Trump would be challenging

And then Ziegler goes completely off the rails.

Apparently, in attempting to strike the ballots of particular voters, prejudice to those voters shouldn't be something the court considers in its laches analysis because they're not specifically named as defendants

To call this outright crazy is to dramatically undersell it. Voters have a constitutional right to have their ballots counted. If the only way for prejudice to the voters to be taken into account in a post-election challenge is for the voters to be named as parties ...

then the voters are NECESSARY parties to the recount suit - because it seeks to impact their rights without their participation - and you should have to personally name and serve every voter in Wisconsin in any challenge

The reason you don't have to do that is simple: the election officials essentially stand in for the voters in these cases, defending their rights to have their legal ballots counted.

"Ignore the prejudice to the voters" is a kind of law-as-magical-incantation approach to legal reasoning that I'd be fucking embarrassed to see from a traffic court judge, let alone a State Supreme Court judge.

Then Ziegler says the court should have overlooked the laches because Wisconsin needs clarity on these election law issues.

As though nobody else could ever bring a claim based on them BEFORE the next election.

I'm skipping through her "we should have decided this" portion. But this piece is remarkably dumb. Why was it different? Because unlike the other challenges, the Campaign didn't even bother identifying which specific ballots supposedly were illegal. It just said "some of em"

And that's it. After all that, she doesn't write about the merits, instead joining Roggensack's and Grassl Bradley's separate dissents on those issues (and they join hers; one wonders, since they all agreed with each other, why there were 3 separate dissents)

Last we get to Grassl Bradley's 14-page dissent. Need to take a brief break before I get back to it.

OK. Back to Grassl Bradley. She starts out by waxing poetic about how forcing candidates to challenge election rules they think are illegal *before* the votes is terribly unfair, and that voters should just vote at risk of having a ballot process retroactively declared invalid

No, seriously. But the amazing thing is she does it while ALSO saying--

No, I can't. Just read the first highlight for yourselves

Yes, her opinion that EXPRESSLY declares that voters should have a right to rely on WEC guidance. While ALSO saying "WEC guidance is irrelevant to whether a ballot is valid" and "the majority made up concepts of equity to avoid invalidating ballots cast relying on that guidance"

I ...

What?

No, seriously, what? Also, Judge Roggensack - who earlier wrote that nobody has a right to rely on the WEC guidance, signed on to this concurrence saying "voters should be able to rely on WEC guidance"

Because LOL nothing matters

BTW, whoever pointed out that Grassl Bradley is in LOVE with her computer's underline function ... you weren't kidding

The obsequiousness of this (the President, the President) is exceeded only by its batshit craziness. Where Ziegler said you don't need to challenge election rules before the election, Grassl Bradley's view is you *can't* challenge them before the election

Seriously. In her view, voters are *required* to vote in line with whatever guidance and rules are in place, but also MUST do so as game of Calvinball, with no idea of which rules are going to be invalidated once a losing candidate needs to challenge their loss

Also, let's not sleep on the absolute vileness of "why would he challenge these rules before the election when he won under them the last time"

Yes, yes, the rule of law absolutely requires that voters not know whether their votes are legal until after the election. This is definitely a serious argument and I'm not at all disgusted by it.

Grassl Bradley next goes into the "witness address" issue and says the WEC guidance got it wrong, then bounces backwards to waxing poetic about how "unelected commissions" shouldn't control such things. Seriously, lady needs to take a legal writing course on STRUCTURE

You'll note I'm not quoting this part of her opinion; it's not noteworthy, at all. Just random platitudes about elections and the need to address the case on the merits.

And yet, Grassl Bradley, like Ziegler, doesn't touch on the merits at all beyond that brief discussion of the witness requirement.

I don't have much more to say here. She spilled a lot of ink on "we should decide this on the merits because this stuff is important" without, you know, actually getting into the merits.

That's it. I'm done.

Oh, one last thing on the Wisconsin cases. All told, it looks like the dissents would have tossed 22K votes.

That would not have been enough to swing the election. Even if the dissents had gotten enough votes to be the majority, Trump loses Wisconsin