Indy firm behind Trump Wisconsin election challenge weighs SCOTUS bid

With little more than a week before a joint session of Congress will formally count votes of the Electoral College that President-elect Joe Biden won by a 306-232 margin, President Donald Trump continues to bend the ear of an Indianapolis attorney who unsuccessfully argued to overturn Wisconsin’s election results. The lawyer declined Monday to confirm Trump’s latest loss in court will be appealed to the U.S. Supreme Court.

William Bock III of Kroger Gardis & Regas is lead counsel for Trump in the president’s federal lawsuit seeking to overturn the election results in the Badger State, which Trump lost by more than 20,000 votes. Trump’s suit lost at the district court, and the 7th Circuit Court of Appeals affirmed that  ruling on Christmas Eve in Donald J. Trump v. Wisconsin Elections Commission, et al., 20-3414.

“We’ll have a final decision shortly,” Bock said of whether he will ask the U.S. Supreme Court to hear an appeal of one of the few remaining suits challenging election results that courts nationwide have broadly rejected. 

Bock told IL Monday he’s been in direct contact with Trump regarding the Wisconsin suit, but the attorney declined to say whether he’ spoken to the president since the 7th Circuit ruled against him on Thursday. Bock said he was “not authorized right now” to say whether he expects to file a cert petition asking the U.S. Supreme Court to hear Trump’s appeal, but he expects a decision in the next day or two.

“I can’t describe the communications and conversations I’ve had” with Trump, or whether he has spoken with the president since the 7th Circuit’s ruling, Bock said. “I’m not going to get into the timing or the content of communications.”

Bock’s suit filed Dec. 2 was dismissed earlier this month by U.S. District Judge Brett Ludwig, a Trump appointee in the Eastern District of Wisconsin who called the case and the relief it sought “extraordinary” and concluded that the arguments seeking to overturn the will of voters “fail as a matter of law and fact.”

A 7th Circuit panel of three judges appointed by Republican presidents agreed Thursday. Judge Michael Scudder, a Trump appointee and Fort Wayne native who represents Illinois on the federal appellate bench, wrote the opinion joined by Senior Judge Joel Flaum and Judge Ilana Rovner.

“The district court concluded that the President’s challenges lacked merit, as he objected only to the administration of the election, yet the Electors Clause, by its terms, addresses the authority of the State’s Legislature to prescribe the manner of appointing its presidential electors. So, too, did the district court conclude that the President’s claims would fail even under a broader, alternative reading of the Electors Clause that extended to a state’s conduct of the presidential election,” Scudder wrote. “We agree that Wisconsin lawfully appointed its electors in the manner directed by its Legislature and add that the President’s claim also fails because of the unreasonable delay that accompanied the challenges the President now wishes to advance against Wisconsin’s election procedures.”

Likewise, the 7th Circuit concluded that Trump had waited too long to raise challenges that are at the core of his Wisconsin suit: arguments about how the election was administered.

“The President had a full opportunity before the election to press the very challenges to Wisconsin law underlying his present claims. Having foregone that opportunity, he cannot now — after the election results have been certified as final — seek to bring those challenges,” Scudder wrote. “All of this is especially so given that the Commission announced well in advance of the election the guidance he now challenges. Indeed, the witness address guidance came four years ago, before the 2016 election. The Commission issued its guidance on indefinitely confined voters in March 2020 and endorsed the use of drop boxes in August.

“Allowing the President to raise his arguments, at this late date, after Wisconsin has tallied the votes and certified the election outcome, would impose unquestionable harm on the defendants, and the State’s voters, many of whom cast ballots in reliance on the guidance, procedures, and practices that the President challenges here. The President’s delay alone is enough to warrant affirming the district court’s judgment.”

The panel concluded that the Wisconsin Supreme Court also had ruled on the administration of the election, ruling against Trump, and that Wisconsin had “lawfully appointed its electors in the manner directed by its Legislature … .”

Time for any potential appeal of Thursday’s 7th Circuit ruling to the U.S. Supreme Court is short. Vice President Mike Pence is scheduled to preside over a joint session of Congress on Jan. 6, where votes of electors are to be tabulated for formal approval.

But Bock declined to say whether that joint session would end Trump’s challenge of an election he lost by more than 8 million votes nationwide and by an electoral margin matching Trump’s 2016 victory that the president called a landslide. Bock raised the possibility of further legal challenges even if electors were approved as well as the prospect that House and Senate members may object to the electors, which would lead to debate among members in their respective chambers.

Bock said the suit he filed was important to get a hearing on arguments that election rules were changed in Wisconsin by people who lacked authority to do so. “If the state Legislature does not retain that authority, then you have, as happened this year in several states, mass chaos in the lead-up to the elections,” he said.

Bock said the response he’s gotten from people for filing the suit “really depends on who you’re talking with. … Everybody I’ve talked to face-to-face has been supportive or has willingly listened” to the legal bases undergirding the complaint, “which I believe are very strong.”