But the gambit shows how the president is continuing to try to open new fronts in his fading battle to undermine Biden’s win, even after all six swing states where he has contested the results have now certified their results and courts around the country have rejected the arguments of Trump and his allies.
The Wisconsin suit was filed a day after Gov. Tony Evers (D) certified Biden’s more than 20,000-vote victory in the state. Trump had requested a recount in the state’s two largest counties, which concluded Sunday and reconfirmed Biden’s win. Under state law, a candidate who loses a recount has five days to file a lawsuit challenging the process.
Also Tuesday, a group of petitioners led by Rep. Mike Kelly (R-Pa.) said they are asking the Supreme Court to consider a case challenging Pennsylvania’s mail-in voting rules. The state’s highest court had dismissed the case Saturday, arguing that its request to throw out millions of votes was “extraordinary” and had come far too late — more than a year after the balloting rules were adopted.
Generally, the U.S. Supreme Court does not second-guess state courts when they are interpreting their own constitutions. And in an interview Sunday on Fox News, Trump acknowledged that he may not succeed in getting the Supreme Court to weigh in on the election.
“Can you imagine?” he said. “Donald Trump, president of the United States, files a case, and I probably can’t get a case.”
In its suit in Wisconsin, the Trump campaign is seeking to toss out several large categories of ballots, including more than 170,000 cast early and in person in Milwaukee and Dane counties. The campaign argued that a form filled out by voters before casting such ballots does not qualify as an application for a ballot under state law.
The form, however, is used throughout the state and has been in place for many election cycles. Documents distributed during the recount showed that James Troupis, the Trump campaign’s lead attorney in Wisconsin, cast such a ballot himself — meaning the suit essentially argues that his own ballot was illegal and should not be counted.
The suit also challenges a practice adopted in October 2016 of allowing Wisconsin clerks to correct tiny errors on the certification envelope of mail-in ballots, as well another procedure, in place since 2011, that allows aged and infirm voters to assert they are “indefinitely confined” and to vote without submitting a photo identification.
In all, the campaign’s lawsuit targets 221,000 votes — all cast in Milwaukee and Dane counties, home to the majority of voters of color in Wisconsin.
The lawsuit does not assert that fraud took place or that individual voters committed wrongdoing but instead claims that election clerks misinterpreted state law — allowing what the campaign termed “unlawful” ballots to be counted.
“As we have said from the very beginning of this process, we want all legal votes and only legal votes to be counted,” Trump lawyer Rudolph W. Giuliani said in a statement. “Americans must be able to trust in our election results, and we not stop until we can ensure voters once again have faith in our electoral process.”
Troupis told Fox News on Tuesday that he did not believe the campaign’s lawsuit in Wisconsin would change the outcome of the national election. But he said it could result in changes in how ballots are handled in the Badger state.
“Exposing exactly how the election processes were abused in Wisconsin holds enormous value for this election beyond a victory for President Trump, but the fact is, our state’s electoral votes likely won’t change the overall outcome,” he said. “Regardless, we’re demonstrating that the results of this election unequivocally ought to be questioned.”
Wisconsin Attorney General Josh Kaul (D) said in a statement that the suit is essentially seeking the creation of a “a two-tiered system for votes cast in the presidential election, with citizens from two of our counties subject to disenfranchisement under much stricter rules than citizens in the rest of the state.”
Nate Evans, a spokesman for the Biden campaign, said in a statement that the lawsuit is “completely baseless and not rooted in facts on the ground.”
“The hundreds of thousands of Wisconsinites targeted by this lawsuit did nothing wrong. They simply followed long-standing guidance from elections officials issued under the law,” he said.
Evans called the suit an attempt to “disenfranchise large groups of Wisconsin voters” and noted that the same arguments were made during the recount process and rejected by local boards of canvassers, often on a bipartisan basis.
At a meeting Tuesday morning of the Wisconsin Elections Commission, Milwaukee Mayor Tom Barrett objected to the Trump campaign’s attempt to throw out votes in his city and in the county that includes the city of Madison.
“These claims are obviously an egregious and floundering attempt to discredit this fair election,” he said.
Edward B. Foley, an election law expert at Ohio State University, said that of all Trump’s cases, the Wisconsin lawsuit offered the greatest chance of a favorable ruling.
“It’s his best shot,” Foley said. “These are not claims of fraud, and they’re not wild national conspiracy theories. They are talking about technical rules. Sometimes technical rules aren’t followed, and they should have been.”
However, the remedy the campaign is seeking is extreme, he added.
Even if the Trump campaign persuaded judges that the state’s rules were technically violated, it would still face a major challenge in convincing them that the proper response would be to throw out hundreds of thousands of votes, Foley said — particularly because the campaign did not challenge the rules before the election and voters cast their ballots in good faith.
Ultimately, he said, he believed that “upending the vote seems too heavy a lift for a court to be willing to undertake.”
Rick Hasen, an election law expert at the University of California at Irvine, said if the state supreme court follows the law, the case should “easily fail.” Conservatives hold a 4-to-3 majority on the panel.
“It raises issues that could have been raised well before the election, and deciding the issue now risks disenfranchising hundreds of thousands of Wisconsin voters through no fault of their own,” he said. “We’ve seen this same pattern in other lawsuits across the country, and courts have been similarly unwilling to go along with these late gambits for similar reasons.”
Robert Barnes, Elise Viebeck, Anna Brugmann, Maya Smith, Aaron Schaffer and Keith Newell contributed to this report.