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Wisconsin’s Rejection of a Trump-Backed Supreme Court Candidate Ended Up Being Extremely Important


The Wisconsin Supreme Court on Monday rejected one of Donald Trump’s final attempts at overturning the 2020 election results, leaving President-elect Joe Biden’s victory untouched. But the court’s narrow 4-3 decision may very well have gone in the president’s favor if a liberal challenger hadn’t managed to oust a Trump-backed incumbent justice for a seat on the bench several months ago.

Justice Jill Karofsky pulled off a surprising upset in April when she defeated incumbent conservative Justice Daniel Kelly in a highly anticipated election for ideological control of the state’s high court, even after President Trump personally endorsed the latter for the position.

“Highly respected Justice Daniel Kelly is running for the Supreme Court in the Great State of Wisconsin. Justice Kelly has been doing a terrific job upholding the Rule of Law and defending your #2A,” Trump tweeted in April. “Tough on Crime, Loves our Military and our Vets. He has my Complete Endorsement!”

Karofsky called out Trump campaign attorney James Troupis during a hearing on Saturday, saying that the campaign’s attempt to only invalidate the results in two largely minority populated counties “smacks of racism.” Karofsky joined a 4-3 majority against Trump’s ballot challenges on Monday.

Had Kelly managed to maintain his spot on the bench, the staunch conservative who was appointed to a vacant seat on the bench by then-Gov. Scott Walker (R) in 2016 would have boosted president’s chances at notching a major post-election legal victory by siding with three of the court’s conservative justices, all of whom issued dissents.

The court’s conservative bloc of justices was more receptive the campaign’s allegations, lambasting the majority’s holding that most of the claims were barred by laches; Justice Annette Ziegler calling it an “abdication of constitutional duty.”

“The majority’s failure to act leaves an indelible stain on our most recent election. It will also profoundly and perhaps irreparably impact all local, statewide, and national elections going forward, with grave consequence to the State of Wisconsin and significant harm to the rule of law,” Justice Rebecca Bradley similarly wrote. “Petitioners assert troubling allegations of noncompliance with Wisconsin’s election laws by public officials on whom the voters rely to ensure free and fair elections. It is our solemn judicial duty to say what the law is. The majority’s failure to discharge its duty perpetuates violations of the law by those entrusted to administer it.”

“Once again, four justices on this court cannot be bothered with addressing what the statutes require to assure that absentee ballots are lawfully cast,” Chief Justice Patience Roggensack wrote, taking aim at conservative Justice Brian Hagedorn for joining the majority. “I respectfully dissent from that decision.”

UC Irvine law professor and election law expert Rick Hasen said it was “odd” that the conservative dissenters agreed that at least some of the Trump campaign’s claims had merit, but none of those justices identified the relief they believed the Trump campaign should be awarded.

“[T]hey do not say what the remedy should be, and do not weigh in on whether to throw out the votes and award the results to Trump. Very odd to not say what the remedy should be,” he wrote on ElectionLawBlog. “This is very odd. If in fact there were illegalities in how the election was run, how could the dissenters not say what they think the remedy should be?”

Read all three dissents below:

Wisconsin Dissents by Law&Crime on Scribd

[image via ROBERTO SCHMIDT_AFP_Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.