In Wisconsin, long shot recount may just be prelude to court

President Donald Trump faces an almost impossibly high bar to reverse his election loss in Wisconsin by closing a deficit of some 20,500 votes

Election 2020 Wisconsin (WISCONSIN STATE JOURNAL)

President Donald Trump s hopes to reverse his election loss in Wisconsin hinge on closing a deficit of some 20,500 votes, an almost impossibly high bar that spurs speculation his true goal is building a case for legal challenges that could win favor in the state's conservative-controlled Supreme Court.

Trump s recount petition makes clear he plans to attack absentee ballots, used far more heavily by Joe Biden's supporters, in the partial recount that covers just Milwaukee and Dane counties — Wisconsin's biggest and most liberal.

Some questions and answers about the recount:

Q: WHAT ARE THE CHANCES THE RECOUNT COULD DELIVER A WIN FOR TRUMP?

A: History says no. There’s no precedent in Wisconsin or anywhere else of a recount changing the outcome with a margin as wide as Biden's.

A statewide recount of Trump's 2016 win in Wisconsin, requested by Green Party candidate Jill Stein, barely budged the numbers for any candidate. Nationwide, there have been at least 31 recounts in statewide elections in the U.S. since the most famous one in Florida’s presidential election in 2000. Just three of those changed outcomes, but all three were decided by hundreds of votes, not thousands.

Jeff Mandell, president of the liberal Madison-based legal firm Law Forward, said it's as if Trump is trying to find enough money to buy a car by searching in sofa cushions.

“You might find a little bit of change here and there — but you aren’t going to find enough,” he said.

Rick Esenberg, of the conservative Wisconsin Institute for Law, agreed it's a long shot: “I don't see a movement of 20,000 votes for Trump,” he said.

Q: WHAT ABOUT IRREGULARITIES CLAIMED BY TRUMP?

A: Trump's petition claims the counties issued ballots without first receiving written applications in violation of state law — perhaps more than 60,000 in Milwaukee alone. It says all those ballots should be disqualified, but offers no evidence for the claim.

People who vote in-person early fill out a certification envelope that they then place their ballot in and that envelope serves as the written record. But the vast majority of absentee requests these days are made online, with a voter's name entered into an electronic log with no paper record.

The issue came up this week at a Wisconsin Elections Commission meeting, with Republican commissioners questioning whether absentee ballots requested online should be invalidated. The commission's staff said electronic logs are simply the way modern elections are done.

Q: ANY OTHER ALLEGATIONS ABOUT ABSENTEES?

A: Mail-in ballots must include an outer envelope with the addresses of witnesses to the ballot. The Trump petition claims clerks broke the law by allowing staff to write in any missing addresses for those witnesses, and any such ballots should be disqualified.

But the bipartisan Elections Commission's longstanding guidance has been that clerks can fill in missing information when they can reliably determine it. No court has ever ruled the practice illegal.

Q: WHAT’S THE ISSUE TRUMP RAISES ABOUT “INDEFINITELY CONFINED” VOTERS?

A: Trump’s recount petition highlights a sharp uptick in voters who declared themselves “indefinitely confined,” a status that under Wisconsin law meant they didn’t have to provide photo ID to get an absentee ballot. The petition says the law was designed to apply to the infirm, seriously ill or disabled but was improperly invoked by tens of thousands of people during the pandemic. It offers no evidence for those claimed numbers.

The Wisconsin Republican Party sued Democratic Dane County Clerk Scott McDonell in March, before the state’s spring primary, over advice he had posted on his Facebook page that voters could declare themselves indefinitely confined due to the pandemic. The Wisconsin Supreme Court ordered McDonell to stop issuing guidance that is different from official language approved by the Wisconsin Elections Commission. The Trump campaign alleged that “the damage was already done” before McDonell was ordered to remove the language.

It's not clear how the Trump campaign would prove that thousands of ballots were improperly obtained.

Q: WHAT HAPPENS IF A MAIL-IN BALLOT IS DEEMED DEFECTIVE?

A: There are no names on the ballots themselves and no clear way for vote counters to link a given ballot to given ballot application or envelop.

So, when a ballot is determined to have been wrongly counted for whatever reason, election officials randomly discount a ballot that was counted. Because the recounts are being conducted in overwhelmingly Democratic counties, the majority of votes pulled and thrown away would likely be for Biden.

Republican election commission member Dean Knudson argued at Wednesday’s hearing that ballots disputed by Trump should be automatically set aside in bulk until a court rules if they are admissible.

Q: WHAT IS TRUMP’S END GAME IN WISCONSIN?

A: The issues the Republicans are raising in the recount could muddy the waters and help Trump claim to his ardent supporters that he should have won.

A recount is also a required before a candidate can bring legal issues broached in a recount petition to court.

Mandell, the liberal attorney, described the Trump campaign as putting forward far-fetched legal theories in hopes a judge will throw out whole categories of votes.

“It seems implausible and wholly inappropriate that a court would credit these theories … and decide that the proper remedy is to disenfranchise voters who did nothing wrong and followed the rules,” he said.

The recount must be done by Dec. 1, the deadline for the Wisconsin Elections Commission to certify the vote. State law gives that power to the board's chair, who is currently a Democrat, and Biden's electors were chosen by the Democratic Party in October. The state Legislature, although controlled by Republicans, has no role in that process.

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Bauer reported from Madison, Wisconsin.