By Joe Bast | May 31, 2022
On May 17, the Dane County Circuit Court, Judge Stephen E. Ehlke presiding, heard oral arguments on Yiping Liu et al v. Wisconsin Elections Commission et al (case number 2022CV000046). The case involves alleged violations of election laws in November 2020, when the City of Madison aimed to encourage in-person and absentee voting for-targeted populations, an effort privately funded and directed by Center for Tech and Civil Life.
I watched the oral arguments, which were streamed online. Did anyone else watch this? These are my brief reactions, as a nonlawyer:
Judge Ehlke was hostile toward Erick Kaardal, attorney for the plaintiffs, often dismissive of his arguments, and seemed to be a lightweight on matters of fact and the law. He dismissed Kaardal’s central arguments as “ridiculous” on several occasions.
Early on, Judge Ehlke sought to distinguish “facilitate” versus “inducement,” claiming that what the defendants did merely facilitated the voting of citizens during an exceptionally challenging time (the pandemic), and did not constitute “inducement” as the term is used in law making it illegal to induce, generally with financial rewards, someone to vote for a particular candidate. Statutory law, Judge Ehlke said, gives clerks lots of power and latitude on how to run their elections. Allowing drop boxes and encouraging mail-in voting, he said, were “reasonable accommodations.”
Kaardal pointed out that the “inducement” language wasn’t limited to attempts to get people to vote for a particular candidate, but included get-out-the-vote efforts (GOTV) generally. He also stressed that the suit was not aimed at bringing criminal charges, only a civil action. Pointing out how close the Center for Tech and Civic Life (CTCL), clerks, and mayors came to illegal inducement served to demonstrate the seriousness of the transgressions the plaintiffs believe occurred. The subtle distinction seemed to be lost on Judge Ehlke, who throughout the hearing expressed disbelief that what CTCL et al. did constituted “inducement.”
Judge Ehlke made vague references several times to how other courts have dismissed issues being raised in this litigation and how a Supreme Court decision on the legality of drop boxes was expected by the end of June, which he said should “satisfy” the plaintiffs. Kaardal argued the case in Dane County raised issues very specific to how decisions by the Wisconsin Elections Commission (WEC) are made and can be appealed. Moreover, while Wisconsin does not have a law banning private money in elections (another bill vetoed by Gov. Tony Evers) it does have very explicit laws banning drop boxes and inducements to vote. Judge Ehlke seemed not to hear or care, and implied more than once that he had already decided to follow the path he perceived to be taken by other courts.
Before the defense even had its chance to present, Judge Ehlke asserted the clerks were acting in good faith by following the guidance they received from WEC, so it is “ridiculous” to claim that what they did was wrong because it was only later established (by a Supreme Court ruling) that the guidance was incorrect. At the time of their actions, he said, they thought they were making the right decisions. Kaardal said, more than once, that the “acting in good faith” argument has some merit, but the case is not about that, or about reversing the results of the 2020 election, but instead about providing legal clarity for future elections. The judge once again seemed unable to grasp the distinction.
Judge Ehlke fell hard for the silly argument that, as he expressed it, “if drop boxes were already illegal in 2020, why did the legislature have to pass a bill in 2022 (vetoed by the governor, I guess) banning them? That doesn’t make any sense.” Unfortunately, Kaardal didn’t say “it does make sense, your honor, because the WEC ignored the plain language of existing law when they issued their guidance and again when they rejected our complaint, and this court appears likely to allow them to get away with it; the legislature apparently wanted to make their intent so clear that even you could see it.”
Judge Ehlke dismissed as irrelevant the plain language of the agreement between CTCL and the mayors making grant money contingent on the mayors setting up drop boxes and engaging in GOTV activities in Democrat-heavy districts. He didn’t know the agreements specifically called for this action. When Kaardal called it to his attention, he said something to the effect that “of course grant makers set conditions on their grants, that happens all the time.” Kaardal said, of course, but in this case the conditions included inducements to break election laws.
Judge Ehlke said it was “preposterous” to claim that the city of Madison was an “elector” and therefore subject to the law prohibiting “electors” from inducing others to vote for specific candidates. Kaardal cited legal definitions that clearly include governmental bodies in the definition of “persons.” I’m not sure whether that’s a direct response to the judge’s concern. In any case, the judge made the argument for the defense and the defense attorney eagerly agreed with him.
Only now did defense attorneys begin to make their case. They made a big deal out of the extensive documentation submitted by Kaardal in his original complaint to the WEC, suggesting the plaintiffs dumped so much data on the WEC’s staff that it could not properly review it all, that the plaintiffs were improperly leaving it to the WEC to “sift through the evidence.” Kaardal in his reply said he was only trying to provide as much evidence as possible to WEC to help it conduct an investigation, and that it was incumbent on the WEC, not the plaintiffs, to conduct a full investigation. He respectfully asked the judge to include in his decision language to this effect.
Defense attorneys then argued, somewhat inconsistently I thought, that Kaardal was raising legal arguments and introducing facts that were not contained in the original complaint filed with the WEC, and under the doctrine of forfeiture such arguments and facts should be excluded from the judge’s considerations. Kaardal asked, actually pleaded, for the judge to clarify the rules. Can citizens bringing concerns to the WEC be expected to cite each statute that may have been violated? Must they themselves research the law and investigate every lead prior to submitting a complaint to the WEC? Did he, in the original complaint, submit too much or too little information? Upon appeal, can the citizens’ lawyers really not discuss other evidence that is germane and other laws that may have been violated? Judge Ehlke didn’t seem able to follow the argument and appeared to accept the defense’s claim that Kaardal was “pivoting” to new claims that did not appear in the original complaint and therefore those claims should not be considered.
The first defense attorney claimed that private funding of elections is no different from private funding of other government agencies and programs and so should not be subject to a higher level of scrutiny. Kaardal pointed out that half a dozen states have now banned private funding of elections, suggesting that they, at least, understand how elections are different from, say, garbage collection and sports stadiums. Judge Ehlke misunderstood this to be an admission that private funding of elections had been legal in other states, and that it is up to legislatures, not judges, to establish policies in this area.
The defense attorney made the phony argument that all municipalities in Wisconsin were eligible to apply for CTCL grants and many others did receive grants. But 80% of the money went to only four cities, cities that are overwhelmingly Democrat. And those cities, and only those cities, got grants to pay for writing and submitting grant requests. She also implied that much of the money went to “Plexiglas shields” and other Covid-related safety products and interventions. Perhaps in smaller towns scattered across Wisconsin that was true. In the four big cities, such expenditures were dwarfed by partisan get-out-the-vote projects that, when conducted by public agencies, are plainly illegal.
The second defense attorney claimed there is a long history of municipalities working with private partners to encourage “all citizens to vote.” Kaardal may not have had the opportunity to point out that in this particular case — the only case that matters to this court — the private funding was explicitly aimed at inducing some, not all, citizens to vote, with the expectation that one party would benefit almost exclusively from the expenditure. That is unprecedented in Wisconsin and dangerous to democracy.
Judge Ehlke promised a decision by the end of May at the earliest, or maybe in the middle of June. He had planned to attend a Brewers game tomorrow (May 18), he said from the bench, but his friend cancelled, so he figured he would spend some time tomorrow drafting a decision. A real class act, this judge!