Donald Trump v. Wisconsin Elections Commission

983 F.3d 919

• Court: Court of Appeals for the Seventh Circuit
• Decided: December 24, 2020
• Docket: 20-3414
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 20-3414 DONALD J. TRUMP, Plaintiff-Appellant, v.

WISCONSIN ELECTIONS COMMISSION, et al., Defendants-Appellees. ____________________

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:20-cv-1785 — Brett H. Ludwig, Judge. ____________________

SUBMITTED DECEMBER 21, 2020 * — DECIDED DECEMBER 24, 2020 ____________________

Before FLAUM, ROVNER, and SCUDDER, Circuit Judges. SCUDDER, Circuit Judge. Two days after Wisconsin certified the results of its 2020 election, President Donald J. Trump in- voked the Electors Clause of the U.S. Constitution and sued

* We have agreed to decide this case without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. FED. R. APP. P. 34(a)(2)(C). 2 No. 20-3414

the Wisconsin Elections Commission, Governor, Secretary of State, and several local officials in federal court. The district court concluded that the President’s challenges lacked merit, as he objected only to the administration of the election, yet the Electors Clause, by its terms, addresses the authority of the State’s Legislature to prescribe the manner of appointing its presidential electors. So, too, did the district court conclude that the President’s claims would fail even under a broader, alternative reading of the Electors Clause that extended to a state’s conduct of the presidential election. We agree that Wis- consin lawfully appointed its electors in the manner directed by its Legislature and add that the President’s claim also fails because of the unreasonable delay that accompanied the chal- lenges the President now wishes to advance against Wiscon- sin’s election procedures. I A On November 3, the United States held its 2020 presiden- tial election. The final tally in Wisconsin showed that Joseph R. Biden, Jr. won the State by 20,682 votes. On November 30, the Wisconsin Elections Commission certified the results, the Governor signed an accompanying certification, and Wiscon- sin notified the National Archives that it had selected Biden’s ten electors to represent the State in the Electoral College. Two days later, the President brought this lawsuit chal- lenging certain procedures Wisconsin had used in conducting the election. The President alleged that the procedures vio- lated the Electors Clause of the U.S. Constitution: Each State shall appoint, in such Manner as the Legis- lature thereof may direct, a Number of Electors, equal No. 20-3414 3

to the whole Number of Senators and Representatives to which the State may be entitled in the Congress …. U.S. CONST. art. II, § 1, cl. 2. To implement the obligation imposed by the Electors Clause, Wisconsin’s Legislature has directed that the State’s electors be appointed “[b]y general ballot at the general elec- tion for choosing the president and vice president of the United States.” WIS. STAT. § 8.25(1). It has further assigned “re- sponsibility for the administration of … laws relating to elec- tions and election campaigns” to the Commission. Id. § 5.05(1). Municipalities run the election, and each municipal- ity’s own clerk “has charge and supervision of elections and registration in the municipality.” Id. § 7.15(1). The President alleges that the Commission and municipal officials so misused the power granted to them by the Legis- lature that they had unconstitutionally altered the “Manner” by which Wisconsin appointed its electors. His allegations challenge three pieces of guidance issued by the Commission well in advance of the 2020 election. (Each guidance docu- ment is available on the Commission’s website, https://elec- tions.wi.gov.) First, in March 2020, the Commission clarified the stand- ards and procedures for voters to qualify as “indefinitely con- fined” and therefore be entitled to vote absentee without pre- senting a photo identification. See WIS. STAT. §§ 6.86(2)(a), 6.87(4)(b)2. The Commission explained that many voters would qualify based on their personal circumstances and the COVID-19 pandemic, adding that Wisconsin law established no method for a clerk to demand proof of a voter’s individual situation. The Wisconsin Supreme Court endorsed the 4 No. 20-3414

Commission’s interpretation when it enjoined the Dane County Clerk from offering any contrary view of the law. See Jefferson v. Dane County, 2020 WI 90 ¶¶ 8–9 (Dec. 14, 2020). Second, the Commission issued guidance in August 2020 endorsing the use of drop boxes for the return of absentee bal- lots. The Commission explained that drop boxes could be “staffed or unstaffed, temporary or permanent,” and offered advice on how to make them both secure and available to vot- ers during the pandemic. Third, four years ago, before the 2016 election, the Com- mission instructed municipal clerks on best practices for cor- recting a witness’s address on an absentee ballot certificate. See WIS. STAT. § 6.87(2), (6d), (9). Clerks were able, the Com- mission explained, to contact the voter or witness or use an- other source of reliable information to correct or complete ad- dress information on an absentee ballot. The President’s complaint alleges that the Commission, in issuing this guidance, expanded the standards for “indefi- nitely confined” voters, invited voter fraud by authorizing the use of unstaffed drop boxes, and misled municipal clerks about their powers to complete or correct address information on absentee ballots, all contrary to Wisconsin statutory law. The President sought declaratory and injunctive relief on the view that these alleged misinterpretations of state law “in- fringed and invaded upon the Wisconsin Legislature’s pre- rogative and directions under [the Electors Clause of] Article II of the U.S. Constitution.” B After an evidentiary hearing, the district court rejected the President’s claims on the merits and entered judgment for the No. 20-3414 5

Commission and other defendants. The Electors Clause, the court determined, addressed the “Manner”—the “approach, form, method, or mode”—by which Wisconsin appointed its electors. For Wisconsin, that meant only by “general ballot at the general election,” WIS. STAT. § 8.25(1), with the court fur- ther observing that any mistakes in administering the election did not change that the electors were appointed by general election. Even if the Electors Clause was read more broadly to ad- dress the “Manner” in which Wisconsin conducted the elec- tion, the district court determined that the Legislature had au- thorized the Commission to issue the guidance now chal- lenged by the President. None of that guidance, the district court reasoned, reflected such a deviation from the Wisconsin Legislature’s directives as to violate the Electors Clause. The President promptly appealed, and we expedited the case for decision. II We begin, as we must, by assessing whether the President has presented a Case or Controversy over which we have ju- risdiction. The inquiry turns on the doctrine of standing and, more specifically, whether the President has alleged an injury traceable to the actions of the defendants and capable of being redressed by a favorable judicial ruling. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). The district court an- swered the question in the President’s favor. We do too. On the injury prong of standing, the President has alleged “concrete and particularized” harm stemming from the alleg- edly unlawful manner by which Wisconsin appointed its elec- tors. Id. at 560. As a candidate for elected office, the President’s 6 No. 20-3414

alleged injury is one that “affect[s] [him] in a personal and in- dividual way.” Id. at 560 n.1; see also Carson v. Simon, 978 F.3d 1051, 1058 (8th Cir. 2020) (“An inaccurate vote tally is a con- crete and particularized injury to candidates.”). The alleged injury-in-fact is likewise “fairly traceable” to the challenged action of the defendants, see Allen v. Wright, 468 U.S. 737, 751 (1984), all of whom played some role in administering the election. The final requirement for Article III standing—that the al- leged injury “likely” would be redressed by a favorable deci- sion—presents a closer question. Lujan, 504 U.S. at 561. The difficulty is attributable to the gap between what the Presi- dent ultimately desires (to be declared the victor of Wiscon- sin) on one hand, and what a court can award him on the other. But the President’s complaint can be read as more mod- estly requesting a declaration that the defendants’ actions vi- olated the Electors Clause and that those violations tainted enough ballots to “void” the election. Were we to grant the President the relief he requests and declare the election results void, the alleged injury—the unlawful appointment of elec- tors—would be redressed. True, our declaration would not result in a new slate of electors. But the fact that a judicial or- der cannot provide the full extent or exact type of relief a plaintiff might desire does not render the entire case nonjus- ticiable. See Church of Scientology v. United States, 506 U.S. 9, 12–13 (1992). A favorable ruling would provide the oppor- tunity for the appointment of a new slate of electors. From there, it would be for the Wisconsin Legislature to decide the next steps in advance of Congress’s count of the Electoral Col- lege’s votes on January 6, 2021. See 3 U.S.C. § 15. All of this is enough to demonstrate Article III standing. No. 20-3414 7

We also conclude that the President’s complaint presents a federal question, despite its anchoring in alleged violations of state law. The Eleventh Amendment and principles of fed- eralism bar federal courts from directing state officials to fol- low state law. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984). But we can decide whether their inter- pretation of state law violated a provision of the federal Con- stitution, here the Electors Clause. This distinction alleviates any federalism concerns that might otherwise preclude our consideration of the President’s claims. III On the merits, the district court was right to enter judg- ment for the defendants. We reach this conclusion in no small part because of the President’s delay in bringing the chal- lenges to Wisconsin law that provide the foundation for the alleged constitutional violation. Even apart from the delay, the claims fail under the Electors Clause. A The timing of election litigation matters. “[A]ny claim against a state electoral procedure must be expressed expedi- tiously.” Fulani v. Hogsett, 917 F.2d 1028, 1031 (7th Cir. 1990) (citing Williams v. Rhodes, 393 U.S. 23, 34–35 (1968)). The Su- preme Court underscored this precise point in this very elec- tion cycle, and with respect to this very State. See Republican Nat'l Comm. v. Democratic Nat'l Comm., 140 S. Ct. 1205, 1207 (2020). The Court’s direction was clear: federal courts should avoid announcing or requiring changes in election law and procedures close in time to voting. Doing so risks offending principles of federalism and reflects an improper exercise of the federal judicial power. Even more, belated election 8 No. 20-3414

litigation risks giving voters “incentive to remain away from the polls.” Purcell v. Gonzalez, 549 U.S. 1, 5 (2006); see also Crookston v. Johnson, 841 F.3d 396, 398 (6th Cir. 2016) (“Call it what you will—laches, the Purcell principle, or common sense—the idea is that courts will not disrupt imminent elec- tions absent a powerful reason for doing so.”). On this reason- ing, we have rejected as late claims brought too close in time before an election occurs. See Democratic Nat’l Comm. v. Bostel- mann, 977 F.3d 639, 642 (7th Cir. 2020); Jones v. Markiewicz- Qualkinbush, 842 F.3d 1053, 1060–62 (7th Cir. 2016); Navarro v. Neal, 716 F.3d 425, 429 (7th Cir. 2013). The same imperative of timing and the exercise of judicial review applies with much more force on the back end of elec- tions. Before a court can contemplate entering a judgment that would void election results, it “must consider whether the plaintiffs filed a timely pre-election request for relief.” Gjer- sten v. Bd. of Election Comm'rs, 791 F.2d 472, 479 (7th Cir. 1986) (emphasis added) (footnote omitted). These very considerations underpin the doctrine of laches. At its core, laches is about timing. “Laches cuts off the right to sue when the plaintiff has delayed ‘too long’ in suing. ‘Too long’ for this purpose means that the plaintiff delayed inex- cusably and the defendant was harmed by the delay.” Team- sters & Emps. Welfare Tr. of Ill. v. Gorman Bros. Ready Mix, 283 F.3d 877, 880 (7th Cir. 2002). The President had a full opportunity before the election to press the very challenges to Wisconsin law underlying his present claims. Having foregone that opportunity, he cannot now—after the election results have been certified as final— seek to bring those challenges. All of this is especially so given that the Commission announced well in advance of the No. 20-3414 9

election the guidance he now challenges. Indeed, the witness- address guidance came four years ago, before the 2016 elec- tion. The Commission issued its guidance on indefinitely con- fined voters in March 2020 and endorsed the use of drop boxes in August. Allowing the President to raise his arguments, at this late date, after Wisconsin has tallied the votes and certified the election outcome, would impose unquestionable harm on the defendants, and the State’s voters, many of whom cast ballots in reliance on the guidance, procedures, and practices that the President challenges here. The President’s delay alone is enough to warrant affirming the district court’s judgment. B The President would fare no better even if we went further and reached the merits of his claims under the Electors Clause. Defining the precise contours of the Electors Clause is a difficult endeavor. The text seems to point to at least two con- structions, and the case law interpreting or applying the Clause is sparse. This case does not require us to answer the question, as the Commission’s guidance did not amount to a violation under the two most likely interpretations. Recall that the Electors Clause requires each State to “ap- point, in such Manner as the Legislature thereof may direct,” presidential electors. U.S. CONST. art. II, § 1, cl. 2. By its terms, the Clause could be read as addressing only the manner of appointing electors and thus nothing about the law that gov- erns the administration of an election (polling place opera- tions, voting procedures, vote tallying, and the like). The word “appoint” is capacious, “conveying the broadest power 10 No. 20-3414

of determination,” including but not limited to the “mode” of popular election. McPherson v. Blacker, 146 U.S. 1, 27 (1892). Historically, the states used a variety of manners for appoint- ing electors, such as direct legislative appointment. See id. at 29–33. For its part, the Wisconsin Legislature has consistently chosen a general election to appoint its electors. See WIS. STAT. § 8.25(1) (2020); WIS. STAT. §§ 6.3, 7.3 (1849). The complaint does not allege that the Commission’s guidance documents shifted Wisconsin from a general election to some other man- ner of appointing electors, like those used in other states in the past. On this reading of the Electors Clause, the President has failed to state a claim. See FED. R. CIV. P. 12(b)(6). But perhaps the better construction is to read the term “Manner” in the Electors Clause as also encompassing acts necessarily antecedent and subsidiary to the method for ap- pointing electors—in short, Wisconsin’s conduct of its general election. Even on this broader reading, the President’s claims still would fall short. In his concurring opinion in Bush v. Gore, Chief Justice Rehnquist suggested that the proper inquiry un- der the Electors Clause is to ask whether a state conducted the election in a manner substantially consistent with the “legis- lative scheme” for appointing electors. 531 U.S. 98, 113 (2000) (Rehnquist, C.J., concurring). We would not go further and ask, for example, whether Wisconsin’s officials interpreted perfectly “[i]solated sections” of the elections code. Id. at 114. The Wisconsin Legislature expressly assigned to the Com- mission “the responsibility for the administration of … laws relating to elections,” WIS. STAT. § 5.05(1), just as Florida’s Legislature had delegated a similar responsibility to its Secre- tary of State. See Bush, 531 U.S. at 116 (Rehnquist, C.J., concur- ring). Florida’s legislative scheme included this “statutorily No. 20-3414 11

provided apportionment of responsibility,” id. at 114, and three Justices found a departure from that scheme when the Florida Supreme Court rejected the Secretary’s interpretation of state law. See id. at 119, 123. And it was the Minnesota Sec- retary of State’s lack of a similar responsibility that prompted two judges of the Eighth Circuit to conclude that he likely vi- olated the Electors Clause by adding a week to the deadline for receipt of absentee ballots. See Carson, 978 F.3d at 1060. By contrast, whatever actions the Commission took here, it took under color of authority expressly granted to it by the Legis- lature. And that authority is not diminished by allegations that the Commission erred in its exercise. We confine our conclusions to applications of the Electors Clause. We are not the ultimate authority on Wisconsin law. That responsibility rests with the State’s Supreme Court. Put another way, the errors that the President alleges occurred in the Commission’s exercise of its authority are in the main matters of state law. They belong, then, in the state courts, where the President had an opportunity to raise his concerns. Indeed, the Wisconsin Supreme Court rejected his claims re- garding the guidance on indefinitely confined voters, see Trump v. Biden, 2020 WI 91 ¶ 8 (Dec. 14, 2020), and declined to reach the rest of his arguments on grounds of laches. For our part, all we need to say is that, even on a broad reading of the Electors Clause, Wisconsin lawfully appointed its electors in the manner directed by its Legislature. For these reasons, we AFFIRM.