This is from the very recent WI Sup Ct decision. I am not expert in laches etc
IMO there is the
valid point that people casting votes in ways that violated state law might have cast them in person/whatever had they known they might not be counted.
I think the opinion is worth reading. WI has very strict voting statutes but so what?
IMO the conclusion of the dissent states the issues clearly.
The WEC is a state admin agency. They basically said it is OK to violate state statutes as we said it was OK. It is clear that state statutes were violated and the statutes also said that votes in violation of those statutes may not be counted.
The majority said that people relied on the erroneous WEC advice and Trump waited too long.
I wonder. If Trump sued before the election would he have standing? At that point FC would say they had no evidence of harm and he would be right. Zero evidence. It was before the election. Maybe not enough evidence of imminent harm. Possible harm yes. Speculative harm.
If people sued about the WEC rules for the next election would they have standing???
Again I am no expert. The jury box, the ballot box, and the cartridge box, as someone wrote.
I think the dissent is a little more detailed and tighter.
If the dissent won it would not overturn the presidential election but at least it would provide a reason for the WEC going forward to not tell people to ignore the statutes next time. As of right now the WEC has no reason not to do the same next time.
https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=315395 Here, the Campaign unreasonably delayed with respect to
all three categories of challenged ballots.
Waiting until after an
election to challenge the sufficiency of a form application in use
statewide for at least a decade is plainly unreasonable.
The Campaign offers no reason for waiting years [since 2016]
to challenge this approach, much less after this election. None
exists.
The Campaign now asks us to determine that all 17,271
absentee ballots collected during the "Democracy in the Park"
events were illegally cast. Once again, when the events were
announced, the Campaign could have challenged its legality. It
did not. Instead, the Campaign waited until after the election——
after municipal officials, the other candidates, and thousands of
voters relied on the representations of their election officials
that these events complied with the law. The Campaign offers no
justification for this delay; it is patently unreasonable. [I think this was likely announced late 2020. The court does not state the date.]
Rather
than raise its challenges in the weeks, months, or even years
prior, the Campaign waited until after the votes were cast. Such
delay in light of these specific challenges is unreasonable.
[size=150] dissent[/size]. BTW I think some of the procedures were very recently decided but I may be wrong.
Citing the WI statute.
Notwithstanding s. 5.01, with respect to matters
relating to the absentee ballot process, ss. 6.86,
6.87(3) to (7) and 9.01(1)(b)2. and 4. shall be construed
as mandatory.
Ballots cast in contravention of the
procedures specified in those provisions may not be
counted. Ballots counted in contravention of the
procedures specified in those provisions may not be
included in the certified result of any election. ...
[T]he clerk may return the ballot to the elector, inside
the sealed envelope when an envelope is received,
together with a new envelope if necessary, whenever time
permits the elector to correct the defect and return the
ballot within the period authorized under sub. (6).
Section 6.87(9)'s plain language authorizes election officials to
return the ballot to "the elector" to correct "the defect." It
does not authorize election officials to make corrections, i.e.,
to write anything on the certificate.
...
¶77 In addition, Wis. Stat. § 6.87(6d) provides that "
f
a certificate is missing the address of a witness, the ballot may
not be counted." This language is clear. And furthermore, its
legislative history confirms its plain meaning.
...
¶78 The contention that ballots with defective addresses
cannot be counted is supported by more than the plain meaning of
Wis. Stat. § 6.87(6d). The requirement that such ballots not be
counted is found in Wis. Stat. § 6.84(2), which provides that the
provisions in § 6.87(6d) are "mandatory."
...
¶80 The WEC ignores that the legislature provided only one
act an election official may take in regard to a defective witness
address: mail the defective ballot back to the elector to correct
the error. Wis. Stat. § 6.87(9). That the legislature made one
No. 2020AP2038.pdr
10
choice about correcting a defective witness address excludes other
methods of correction. "[T]he express mention of one matter
excludes other similar matters [that are] not mentioned."
...
¶85 And finally, guidance documents "are not law, they do
not have the force or effect of law, and they provide no authority
for implementing or enforcing standards or conditions."
...
The plain,
unambiguous words of § 6.87(4)(b)1. require that voted ballots
"shall be mailed by the elector, or delivered in person, to the
municipal clerk issuing the ballot or ballots." Drop boxes do not
meet the legislature's mandatory directive.
...
This is
an amazing contention. Without question, delivery to volun
ary
poll workers is not "delivered in person to the municipal clerk,"
as § 6.87(4)(b)1. requires.
III. CONCLUSION
¶105 The Milwaukee County Board of Canvassers and the Dane
County Board of Canvassers based their decisions on erroneous
advice when they concluded that changes clerks made to defective
witness addresses were permissible. And, the Dane County Board of
Canvassers erred again when it approved the 200 locations for
ballot collection that comprised Democracy in the Park. The
majority does not bother addressing what the boards of canvassers
did or should have done, and instead, four members of this court
throw the cloak of laches over numerous problems that will be
repeated again and again, until this court has the courage to
correct them. The electorate expects more of us, and we are
capable of providing it. Because we do not, I respectfully
dissent.
¶106 I am authorized to state that Justices ANNETTE KINGSLAND
ZIEGLER, and REBECCA GRASSL BRADLEY join this dissent.
