In dissent, Wisconsin’s Supreme Court’s Chief Justice says…

“There are numerous (election) problems that will be repeated again and again, until this court has the courage to correct them.”

Save for the headline “Wisconsin Supreme Court puts final nail in Trump’s election coffin” … this story isn’t getting much coverage.

That’s too bad because, in the details, the ruling and its dissents hit more nails than the headlined one on the head.

Here’s the essence of the case, the ruling and the dissents ….


The case — Trump’s appeal of a lower court decision — alleged 3 election abuses that violated Wisconsin state statutes.

¶65 The petitions alleged that the following errors occurred during the election in both counties:

(1) Municipal clerks improperly completed missing information on absentee ballot envelopes related to witness addresses;

(2) In-person absentee voters did not submit written applications for an absentee ballot; and

(3) Voters who were not indefinitely confined claimed “indefinitely confined” status for the purposes of obtaining an absentee ballot without having to show a photo identification.

Importantly, the Court did not summarily dismiss the case out-of-hand.  Unlike other court rulings (think: SCOTUS), the Court heard the case on its merits.  That is, they actually considered the evidence that was presented.

That said,  the 4-3 majority dismissed the first 2 allegations under the latches principle, arguing that it was too late in the process to consider the issues.

But, somewhat illogically, the Court fully considered the 3rd allegation which dealt the claim that the state’s voter identification requirements were illegally circumvented.


At issue was a provision in the  state’s election laws  that a person (referred to as an “elector”) need not produce a photo ID when requesting an absentee ballot if the person was “indefinitely confined” due to age or disability.

A specific set of events tested the “indefinitely confined” loophole:

¶96 On September 26, 2020 and October 3, 2020, at more than 200 City of Madison parks, the City of Madison held events called, “Democracy in the Park.”

During those events, poll workers, also referred to as “election inspectors,” helped in the completion of ballot envelopes, acted as witnesses for voters and collected completed ballots.

17,271 absentee ballots were voted and delivered to these poll workers.

Two key points:

(1) Biden only won Wisconsin by 20,000 votes, so these 17,271 absentee ballots are electorally significant (since there were numerous other such incidents alleged).

(2) All of these 17,271 absentee ballots were submitted by persons de facto claiming that they were “indefinitely confined by age or disability”.


In essence, the dissenting minority concluded that the “indefinite confinement” provision was abused to circumvent the state’s voter IDs laws. 

Stating the obvious: The absentee voter’s “confinement” didn’t preclude attendance (and voting) at the Democracy in the Park events.


The majority ruled that:

¶39 We conclude Wis. Stat. § 6.86(2)(a) requires that each individual elector make his or her own determination as to whether the elector is indefinitely confined

Said differently, the law had an “honor system” loophole and thousands of voters flooded though it.

So, the plaintiffs’ claims were denied.


That would be the end of the story, save for a scathing dissent penned by the Chief Justice.

On behalf of the minority, Patience Drake Roggensack, C.J. wrote:

¶74 This case is guided by Wis. Stat. § 6.84 which provides:

The legislature finds that voting is a constitutional right, the vigorous exercise of which should be strongly encouraged.

In contrast, voting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place.

The legislature finds that the privilege of voting by absentee ballot must be carefully regulated to prevent the potential for fraud or abuse.


¶62 In the case now before us, a significant portion of the public does not believe that the November 3, 2020, presidential election was fairly conducted.

(But),  four justices on this court cannot be bothered with addressing what the statutes require to assure that absentee ballots are lawfully cast.

I respectfully dissent from that decision.

The Chief Justice concludes:

Four members of this court threw the cloak of laches over numerous problems that will be repeated again and again, until this court has the courage to correct them.

That, in my opinion, is what should worry all of us.


P.S. As noted above, the final vote was 4-3 … the 3 were all Republicans … the 4 consisted 3 Democrats and 1 Republican.  The 1 Republican was in clear jeopardy of losing his election in 2018 until Pres. Trump vigorously campaigned on his behalf.

Go figure.

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