I know it can be difficult to believe important legal issues are being resolved in some of this last flurry of cases, but they are. Yesterday’s federal district court decision in WI in Trump v. The Wisconsin Election Commission is an important decision on several aspects of the so-called “independent state legislature” (ISL) debates. 

I want to highlight those issues. I also want to comment that, while we are fully aware of the courts uniformly rejecting the lawsuits the Trump campaign and its allies have brought, we have not said as much about the impressively high quality of many these opinions, particularly given the extraordinary time pressures under which they have been produced.

              This decision was written by Judge Brett H. Ludwig, a Trump appointee just confirmed in September.  These are the important issues his opinion addresses and how he resolved them:

•  Standing to Bring Claims under the Electors Clause.  There are uncertainties about who has standing to raise a claim under this clause.  Some believe only state legislatures should have standing, since the clause protects the power to state legislatures.  Yesterday’s opinion rejects this view and concludes that candidates have standing to claim the Electors Clause has been violated, because they have a legally recognizable and particularized injury if they are harmed by a violation.  This holding is consistent with the positions of the Eighth and Eleventh Circuits on this issue.

• Does the ISL Apply to the Way State Election Officials Administer the Election?  This might be the most interesting aspect of the decision.  The Electors Clause empowers state legislatures to decide “the manner” in which a state chooses its presidential electors.  All states, of course, have decided to use popular elections to do so.  But what is the scope of this power to choose the “manner” of selection?

The court concludes that “manner” means the basic mode of selection – whether to hold an election, or appoint the electors directly (as state legislatures did early on).  But the court concludes that the issue of how election officials administer the laws creating the popular election is not within the scope of the Electors Clause.  These administrative matters do not involve the “manner” of choosing the electors, but details of administration.  The court’s position on this is based on a textualist reading of the Electors Clause and is important:

“If plaintiff’s reading of “Manner” was correct, any disappointed loser in a Presidential election, able to hire a team of clever lawyers, could flag claimed deviations from the election rules and cast doubt on the election results. This would risk turning every Presidential election into a federal court lawsuit over the Electors Clause. Such an expansive reading of “Manner” is thus contrary both to the plain meaning of the Constitutional text and common sense.”

• Even if The Electors Clause Includes Election Administration, is the Clause Satisfied When Election Administrators Have Been Delegated Authority by the State Legislature? The court hold that if the clause includes election administration, it also encompasses the legislature’s choice to empower election officials to perform the roles they performed in WI (this principle would likely extend to election administration in most states).  So if election administrators have been directly empowered by state legislation to implement the election laws, their decisions are consistent with the Electors Clause.

• Even if A Court Were to Disagree with These Prior Conclusions, Under What Circumstances Does Election Administration Violate the Electors Clause?  Finally, the court concludes that even if the Electors Clause includes election administration, the mere fact that election officials have resolved disputed issues of statutory construction does not amount to a violation.  Instead, only “significant departures” from the election code would violate the clause.

• The Trump Campaign’s Claims “Fail On Their Merits.”   I mention this because the President has recently taken to complaining that the courts are not resolving his campaign’s claims on the merits.  The court here could have declined to reach the merits, given its holdings on issues 2. and 3. above.  But instead, the court did go on to address the merits and reject the claims. 

As the court said in conclusion:  “This Court has allowed plaintiff the chance to make his case and he has lost on the merits.”