Donald J. Trump, et al. v. Joseph R. Biden, et al.

Article II of the Constitution provides that “[e]ach State shall appoint” electors for President and Vice President “in such Manner as the Legislature thereof may direct.” U.S. Const. art. II, § 1, cl. 2 (emphasis added). That power is “plenary,” and the statutory provisions enacted by the Legislature of a State, in the furtherance of that constitutionally delegated duty, may not be ignored by state election officials or changed by state courts. Bush v. Gore, 531 U.S. 98, 104-05 (2000). Yet during the 2020 presidential election, officials in Wisconsin, wrongly backed by four of the seven Justices of the Wisconsin Supreme Court, ignored statutory provisions which tightly regulate absentee balloting — identified by the Legislature as “mandatory,” such that ballots in violation of them “may not be counted.” They require that absentee ballots be delivered only by mail or by hand delivery to the clerk, photo i.d. must be supplied to obtain ballots (with limited, inapplicable exceptions), and absentee ballots missing the required witness address may be “cured” only by the voter, and not by the clerk. Collectively, this resulted in the counting of at least 50,125 absentee ballots in heavily Democrat areas, in violation of the directives of the Wisconsin Legislature — more than enough to have affected the outcome of the presidential election in Wisconsin, in which the vote margin stands at 20,682. The questions presented are therefore: 1. Whether it violates Article II of the Constitution, as well as the First and Fourteenth Amendments, for state courts, on review of a post-election challenge to the specific ballots cast in a presidential election, to invoke the non-statutory, judge-made doctrine of