Donald Trump v. Wisconsin Elections Commission

D
                                In the

       United States Court of Appeals
                  For the Seventh Circuit
                      ____________________
No. 20-3414
DONALD J. TRUMP,
                                                   Plainti?-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 certi?ed
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 signi?cantly 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 o?cials 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 ?nal tally in Wisconsin showed that Joseph
R. Biden, Jr. won the State by 20,682 votes. On November 30,
the Wisconsin Elections Commission certi?ed the results, the
Governor signed an accompanying certi?cation, and Wiscon-
sin noti?ed 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
o?cials 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 clari?ed the stand-
ards and procedures for voters to qualify as “inde?nitely con-
?ned” and therefore be entitled to vote absentee without pre-
senting a photo identi?cation. 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 o?ering 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
“sta?ed or unsta?ed, temporary or permanent,” and o?ered
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 certi?cate.
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 “inde?-
nitely con?ned” voters, invited voter fraud by authorizing the
use of unsta?ed 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, re?ected 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 speci?cally, 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 o?ce, the President’s
6                                                     No. 20-3414

alleged injury is one that “a?ect[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 ?nal 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
di?culty 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
plainti? 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 o?cials 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 o?ending
principles of federalism and re?ects 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 o? the right to
sue when the plainti? has delayed ‘too long’ in suing. ‘Too
long’ for this purpose means that the plainti? 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 certi?ed as ?nal—
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 inde?nitely con-
?ned 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 certi?ed 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 a?rming 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.
    De?ning the precise contours of the Electors Clause is a
di?cult 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.

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