Perhaps this explains the curious decision last week from Team Trump to request recounts in the two largest Wisconsin counties — both Democratic strongholds. As I noted at the time, the idea that Donald Trump would find 20,000 or more votes in Dane and Milwaukee counties through recounts was risible, and it might have been better to recount everywhere else but Dane and Milwaukee.
As it turns out, the strategy wasn’t addition on its own, but addition through subtraction:
President Trump’s campaign is seeking to use a recount of the presidential election in Wisconsin to attempt to invalidate tens of thousands of votes in the state, making sweeping challenges to whole categories of ballots cast in the state’s two Democratic-leaning counties in his last-gasp effort to reverse President-elect Joe Biden’s win.
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.
At least this is a rational argument, but it’s still a long shot. Assuming that the walk-in ballots can be identified separately from the mail-in ballots for counting purposes, over 175,000 voters walked in their ballots in Dane and Milwaukee (according to the Washington Post, anyway). If two-thirds of those were Biden voters, which is a fairly reserved estimate, there would be enough subtraction to wipe out the difference between Biden and Trump.
There are a number of problems with this strategy, not the least of which is that a recount is not the place for a broad classification challenge to eliminate an entire category of ballots. In order to get massive numbers of ballots disqualified, Team Trump would have to go to court in order to exclude those ballots from a recount, or any other count. That runs into another problem — a Bush v Gore problem regarding equal treatment. If Team Trump goes to court and successfully argues that walk-ins are invalid under Wisconsin law, then all such ballots would have to be invalidated state-wide in every county, not just the counties that Trump wants recounted. It’s very likely that Trump voters mistrusted the Post Office more than Biden voters, especially given Trump’s months-long campaign that fueled that mistrust, which would likely mean that statewide invalidation would add to Biden’s lead rather than subtract from it.
The biggest problem with this idea is that courts are not going to invalidate hundreds of thousands of ballots statewide over a technical issue such as this. If the Trump campaign had an issue with walk-in ballots, they would have had to raise it in court before the election. Voters relied on instructions from the state of Wisconsin in walking ballots into their precincts in person, and there isn’t a court in the land that will punish voters for doing that. That’s especially true when the technical issue isn’t prejudicial to one side or another on its face.
Amusingly, the attorney heading up the recount walked in his absentee ballot in the election:
The attorney leading President Donald Trump’s recount effort in Wisconsin voted illegally according to his own legal argument that in-person absentee ballots should be thrown out. So did his wife.
Jim Troupis, a former Dane County judge and Cross Plains attorney who is representing the Trump campaign, would not answer questions about why he and his wife voted that way.
Troupis and his wife voted early using the state’s in-person absentee option — one of a group of voters whose ballots the Trump campaign has asked election officials to deem illegal.
Their names appeared on exhibits Troupis submitted to the Dane County Board of Canvassers on Sunday, during the county’s third day of retallying ballots. The exhibits include lists of voters who voted in a manner the campaign alleges is illegal, an argument the Board of Canvassers has rejected. The information was provided by Dane County to both campaigns.
Did Troupis commit fraud, or did he get defrauded?
Anyway, don’t expect this challenge to matter much in the end. It has the same chances that the Team Trump efforts in Pennsylvania, Michigan, and Georgia have in changing the outcome of the election — vanishingly slim and none.
Update: So much for ‘vanishingly slim.’ Via Alan Windham, Wisconsin statute does allow for in-person delivery of absentee ballots. Emphasis mine:
The envelope shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots. If the envelope is mailed from a location outside the United States, the elector shall affix sufficient postage unless the ballot qualifies for delivery free of postage under federal law. Failure to return an unused ballot in a primary does not invalidate the ballot on which the elector’s votes are cast. Return of more than one marked ballot in a primary or return of a ballot prepared under s.or a ballot used with an electronic voting system in a primary which is marked for candidates of more than one party invalidates all votes cast by the elector for candidates in the primary.
Wis. Stat. § 6.87
That seems to address the objection, which wasn’t going anywhere regardless. Note too that there is no specific prohibition to submitting absentee ballots in person before Election Day, so there seems to be no basis for this objection. Did Trump’s attorneys miss this?
Update: One more point on delivery:
A quick review of this statute, section 6, suggests that an absentee ballot must merely be “delivered” to the clerk by 8 PM on Election Day. https://t.co/ISTLboMmiy
— adub (@AlanWindham) November 23, 2020
There might be an argument for excluding ballots delivered after the deadline, but not before. And I believe Wisconsin already excluded those that got delivered afterward.