Democrats fighting the Trump campaign’s efforts to overturn Wisconsin’s election results called the lawsuit “an affront to the voters of Dane and Milwaukee Counties” and a “shocking and outrageous assault on democracy” in briefs filed Tuesday with the state Supreme Court.
But the heart of their case could rest on a much simpler argument: The president’s lawsuit was filed in the wrong place, and at the wrong time.
The Trump campaign seeks to throw out more than 220,000 absentee ballots cast in Dane and Milwaukee counties, including more than 170,000 ballots that were cast in person before Election Day.
Clerks who accepted those ballots relied on guidance handed down by the Wisconsin Elections Commission, some of which had been in place since 2011.
In a brief filed on behalf of Gov. Tony Evers, attorney Jeff Mandell argued that the time to challenge those guidelines was before the election, not after.
“President Trump chose to lie in the weeds for months nursing unasserted grievances with WEC, county, and municipal policies, and even a decision of this Court, only to spring out after the election and invoke those grievances in an effort to nullify the exercise of the right to vote by more than 200,000 Wisconsinite(s) who cast their ballots in good faith,” Mandell wrote. ” Nothing could be more damaging to the exercise of a critical constitutional right than retroactively nullifying that right entirely.”
University of California-Irvine law professor Rick Hasen said state and federal courts have typically respected what’s known as the “laches” principle when it comes to election disputes.
Put simply, “laches” prevents parties from retroactively bringing lawsuits for issues that could have been disputed ahead of time.
“I think courts have shown themselves properly to be very skeptical of arguments that voters should be disenfranchised because of a potential problem that could have been called to the attention of the courts well before the election but wasn’t,” Hasen said….
Hasen said the problem with challenging those votes now and not before the election is that it punishes voters who did nothing wrong.
“Voters proceeded under the rules that they were given,” Hasen said. “Voters assumed that what they were doing was legal and there’s both federal and Wisconsin authority that says you don’t disenfranchise voters for a fault of someone else.”
While the Wisconsin Supreme Court isn’t bound by precedent set in other states, Hasen noted that the Pennsylvania Supreme Court had rejected one of Trump’s lawsuits, partly on the grounds that it was filed too late.