Indy lawyer seeks to keep Trump election challenge alive at SCOTUS

As the impeachment trial of former President Donald Trump on a count of incitement of insurrection began Tuesday, his Indianapolis lawyer who asked the United States Supreme Court to overturn election results in Wisconsin pleaded anew for the high court to keep the case because Trump may run again for president.

The inauguration of President Joe Biden on Jan. 20 “mooted aspects of the relief (Trump) initially sought,” attorney William Bock III of Kroger Gardis & Regas LLP wrote in a supplemental brief filed Tuesday in Trump’s case that is pending a petition for certiorari before SCOTUS.

But Bock asked the court Tuesday to apply the “capable of repetition yet evading review” doctrine to Trump’s claims. The eight-page brief includes polling and fundraising numbers for the defeated president in noting that he could again be subject to alleged voter fraud —claims that lower courts strongly rejected.

“There is no legal impediment to (Trump) running for re-election. National media and political pundits have highlighted (Trump) as a potential presidential candidate in 2024 and report that he would be the GOP frontrunner should he run again,” the suit says, citing in footnotes to a published opinion piece in USA Today and a report concerning polling on the website Axios.

The brief was filed the day the United States Senate opened Trump’s impeachment trial. House managers prosecuting the article of impeachment assert the president incited insurrection before the deadly siege of the Capitol in Washington, D.C., on the morning the Electoral College tabulation was set to begin Jan. 6 before a joint session of Congress. If Trump is convicted in his impeachment trial, a majority of senators could vote to bar him from holding federal office.

Lower federal courts rejected Trump’s claims of voter fraud in Wisconsin as he sought to overturn the election results in a state he lost by more than 20,000 votes. The arguments chiefly concerned expanded use of absentee voting amid the pandemic and allegations that election officials exceeded their authority.

“The foregoing issues are likely to recur in future presidential elections. To avoid confusion resulting from the erroneous decisions below and prevent need for re-litigation of these issues the ‘capable of repetition’ exception should be applied,” Trump’s new filing says.

After the U.S. Supreme Court declined to expedite the Wisconsin suit following the Electoral College vote count in Congress that certified Biden the winner, the numerous state and local officials named as defendants in the Wisconsin litigation uniformly waived their right to respond to the suit.

“Had any Respondent submitted a brief in opposition, Petitioner would have addressed the issue of mootness in Petitioner’s reply,” the brief says, before asking the court to still hear the case on the capable of repetition grounds.

The suit is Donald J. Trump v. Wisconsin Election Commission, et al., 20-883.

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