As a recount began on Friday in Dane and Milwaukee counties — home to the cities of Madison and Milwaukee — Trump lawyers argued that officials should not merely retabulate all the votes cast in the Nov. 3 election to reconfirm they’d been counted properly.
Instead, they argued that large batches of ballots had been improperly accepted and counted in the first place. In both Dane and Milwaukee, they sought to disqualify all absentee ballots that had been cast before Election Day in person, rather than by mail.
So far, their efforts have been rejected by the Democratic-majority boards of canvassers in both counties, which have denied attempts to set aside large categories of ballots and instead proceeded to a slow-moving process to retabulate all the votes.
The recount must conclude no later than Dec. 1, when the election is scheduled to be certified. At that point, the president’s campaign could file a lawsuit over its rejected challenges — potentially delaying certification.
Trump’s aggressive posture in Wisconsin comes as his efforts to undo Biden’s national victory with false claims of widespread fraud have been met with defeat after defeat, including in a withering ruling Saturday by a federal judge in Pennsylvania, who rejected the campaign’s efforts to stop that state from certifying its election results. The Trump campaign filed an appeal Sunday.
In Wisconsin, as in other states, Trump’s effort appears futile. The unofficial tally shows Biden defeated Trump there by about 20,600 votes — a margin unlikely to change substantially in an ordinary recount. In 2016, when Green Party candidate Jill Stein requested a more extensive statewide recount, it resulted in Trump widening his victory in Wisconsin by a mere 131 votes.
This year, Democrats said the Trump campaign appears to be using the recount process to cynically target urban voters, particularly in Milwaukee. At one point on Friday, some of the tables where Milwaukee city ballots were being processed inside the city’s convention center were surrounded by multiple Trump campaign observers — forcing the Milwaukee County board of canvassers to clarify that the campaigns could have just one representative per table.
Milwaukee County Executive David Crowley said in an interview last week that he believed the Trump campaign’s decision to target for a recount only two counties — including Milwaukee, which has a large Black population — was no coincidence.
“It looks like he’s looking to do pretty much everything he can to disenfranchise voters of color,” said Crowley, the first African American elected to the county post.
In a statement, Trump campaign legal adviser Jenna Ellis said, “Every American deserves to know that our elections are conducted in a legal manner, no matter who they are or where they live. That’s our only goal: to ensure safe, secure, and fair elections. That’s what our Constitution requires.”
The recounts are taking place in vast convention halls in Madison and Milwaukee to provide more room for large numbers of election workers, observers and media to crowd together indoors for hours on end amid the pandemic.
The process began on Friday, as hundreds of workers raised their right hands, most of them covered in blue surgical gloves, and recited their oath.
Trump campaign lawyer Stewart Karge almost immediately accused the newly sworn-in Milwaukee election workers of starting to open and look at ballot applications before the board of canvassers authorized it. “I’m just telling you what I’ve been informed,” he said to the board, citing no evidence.
Twice, Trump supporters erupted in cheers as he spoke, prompting an angry response from the board’s only Republican member.
“Ladies and gentlemen, we need this to be an orderly process,” thundered Rick Baas, staring down a group of Trump observers. “We will not be those other states!”
Other GOP officials in the state have pushed back against the president’s sweeping claims of fraud in cities.
Trump tweeted on Wednesday that Biden had received in Milwaukee a “dump of 143,379 votes at 3:42AM, when they learned he was losing badly. This is unbelievable!”
In fact, the late-reported batch of ballots that broke for Biden were absentee ballots cast by mail or in person before Election Day that election officials had long said would not be counted until after the polls closed.
The Republican majority leader of the Wisconsin State Assembly, Jim Steineke, posted a message on Facebook on Nov. 4 that the early-morning report was “NOT a surprise.”
“Them being reported late is NOT an indication of fraud,” he added.
Steineke did not respond to requests for comment.
On Sunday, Republican Robin Vos, speaker of the Wisconsin State Assembly, defended Trump’s right to seek a recount but noted that Biden’s margin was a “lot to overcome.”
“I assume Joe Biden is going to win, because I think it’s very unlikely that we’re going to find 20,000 cases of fraud,” he told Madison’s WKOW television station.
The count in Milwaukee proceeded slowly Saturday as county officials complained that Trump campaign observers appeared to be trying to stall the process.
“The Trump campaign is continually revisiting issues the commission has ruled on,” County Clerk George Christenson told reporters.
Christenson also complained about the behavior of Trump campaign inspectors, who fanned out at about 150 ballot-processing tables across the vast convention hall.
“The observers are disruptive, asking question after question” of the workers sorting and processing the ballots, he said. “It needs to stop.”
Trump representatives countered that they were not able to see every ballot adequately from the mandated three-foot distance and through the plexiglass shields that had been erected as a precaution because of the coronavirus pandemic.
Michael Maistelman, a Wisconsin election lawyer who has worked with Democratic candidates, said he believed the Trump campaign was issuing “frivolous, irrational objections” in Milwaukee to drag out the process.
Despite the president’s drumbeat of fraud claims, the Trump campaign has not alleged fraud was committed in Wisconsin.
Instead, the campaign has argued that election clerks statewide have adopted practices in soliciting and accepting absentee ballots that violate state law.
The largest category of ballots the Trump campaign has targeted were cast by voters who cast absentee ballots in person rather than by mail. Nearly 70,000 people cast absentee ballots in person in Dane County and another 108,000 in Milwaukee.
The campaign said that the paperwork filled out by people who voted in person did not constitute a proper application for a ballot, as required by state law.
“Wisconsin law expressly requires that absentee ballots may not be issued without receiving a written application requesting the ballot,” the campaign said in a statement, indicating that “despite this clear mandatory requirement, clerks uniformly issued absentee ballots without collecting a written application” from people who voted in person during a two-week period leading up to the election.
State officials have said voters who cast absentee ballots in person sign a document to certify their vote that also constitutes an application.
Such ballots were cast in the same way across much of Wisconsin — including counties that the president won.
But the Trump campaign is seeking only a recount in the two counties where Biden performed best: He won 75 percent of the vote in Dane and 69 percent of the vote in Milwaukee.
Trump was allowed to request a recount statewide, since Biden’s margin of victory — about 0.6 percentage point — is less than 1 percentage point. However, state law required that Trump pay for the recount upfront, and officials estimated a complete recount would cost $7.9 million. Instead, the Trump campaign opted to pay $3 million to recount the ballots only in two counties.
When the campaign filed a petition seeking the recount Wednesday, Jim Troupis, a lawyer for the Trump campaign in Wisconsin, said in a statement that the campaign believed the Wisconsin Elections Commission had provided “unlawful advice” and “repeatedly failed to follow the law” about how to conduct the election and as a result “disenfranchised voters and undermined the integrity of this election.”
He wrote that the campaign was confident that “when all of the legal ballots are counted and illegal ballots are not counted, President Trump will be proven the winner.”
A lawyer for the Biden campaign countered that the recount would only reaffirm Biden’s victory in Wisconsin and expressed confidence that the Trump campaign’s 11th-hour bid to toss tens of thousands of ballots would fail.
“They are not actually interested in recounting the votes,” Danielle Friedman, a lawyer for Biden’s campaign, told reporters. “They’re interested in changing the way the election was conducted — after the votes were already cast and counted.”
Even if courts agreed with the campaign’s interpretation of the law, they would probably be loath to throw out tens of thousands of otherwise legally valid ballots cast by voters in good faith, legal experts said.
Jeffrey Mandell, an election lawyer and founder of the Law Forward, a nonprofit liberal law firm that focuses on election issues, said he believed courts would view the challenges “very skeptically.”
“The timing alone is hugely problematic,” he said, arguing that if the Trump campaign did not like Wisconsin’s practices, it should have challenged them before the election.
Even if a court agreed with the campaign’s legal argument, he said it was unlikely a judge would agree the proper remedy would be to ditch tens of thousands of ballots from voters who did nothing other than follow the instructions they’d been given.
“To hold that against the voter and take their vote away from them, when they’ve done nothing wrong, I think it’s contrary to fundamental principles of justice, to how most courts see their role and to Wisconsin law,” he said.
The campaign also objected to two other processes that have been more controversial in the state — but have also been in place since before the 2016 presidential election, which Trump won and did not contest.
In one, clerks are allowed to fix some mail-in ballots that arrive with a tiny error. In Wisconsin, mail-in ballots require a certification that is signed by both the voter and a witness. Both people must include their address. If the witness fails to include or complete his or her address and that information is readily available to election workers via voter rolls or other information, election officials are allowed to add it to the document. The process was established in mid-October 2016.
Likewise, the Trump campaign has challenged a process in place since 2011 in which voters who declare themselves “indefinitely confined” due to age or disability do not have to submit a photo identification, a requirement for others.
While the number of people who took advantage of the provision rose this year because of the pandemic, the rules have not otherwise changed. In all, more than 68,000 people sought the status in the two counties in which the Trump campaign has requested a recount — out of 215,000 who did so statewide.
“Absentee voting is a privilege — it should not be abused,” Karge told the Milwaukee board Saturday in seeking to question the validity of the ballots. He added that the distinction created “a separate class of voters.”
Biden lawyer Stacie Rosenzweig replied that the effort amounted to a “bald attempt to disenfranchise” hundreds of thousands of voters. She said the increase in voters unable for health reasons to leave home was understandable during a pandemic and called Karge’s arguments “simply meritless.”
The board agreed. Both Democratic members voted to reject the challenge, and Baas, the Republican, voted present. “I don’t believe this to be the appropriate body” to decide the matter, he said.
Rick Esenberg, a conservative election law expert and president of the Wisconsin Institute for Law and Liberty, said he did not believe the Trump campaign would fare better on the issue in court.
While he said there are “legitimate” questions about the state’s rules for people to declare themselves indefinitely confined that the state might examine in the future, he did not believe a court would be inclined to throw out the ballots given that it would be difficult to determine quickly whether any specific voters had unfairly taken advantage of the provision.
“I think it’s highly unlikely that the issue could result in a change in the outcome,” he said.
Simmons reported from Milwaukee. Aaron Schaffer contributed to this report.