Today, Judge J. Mac Davis ruled that the Government Accountability Board must take “affirmative steps to identify and strike duplicate, fictitious or unrecognizable signatures as it reviews the recall petitions expected to be filed against Gov. Scott Walker.” The ruling comes in the case of Friends of Scott Walker v. GAB, filed in Waukesha County Circuit Court on December 15, 2011. The complaint in the case sought a declaratory judgment from the court that the procedures of the Government Accountability Board, whereby the GAB accepted (but did not necessarily count) duplicative signatures on recall petitions, violated the United States Constitution, the Wisconsin Constitution and Wisconsin law. The complaint in the case is available here.
The GAB responded to the lawsuit by arguing that the Wisconsin statutes provide a clearly defined procedure that allows elected officials subject to recall to instigate challenges to any signatures that appear to be duplicative, fictitious or unrecognizable. After the GAB accepts the recall petitions, there is a period of 10 days in which the signatures may be challenged by the official. It is at the challenge stage that suspect signatures should be identified and removed, according to the GAB, and not earlier when the recall petitions are accepted by the agency. The GAB also contended that there was no provision in the Wisconsin Statutes that granted the agency the authority to do what the Friends of Scott Walker asked it to do.
Judge Davis disagreed with the GAB, and earlier today he ruled that the GAB is required to take affirmative action that will have the effect of reducing the burden that the Friends of Scott Walker would otherwise face. This is because the GAB must now identify and remove suspect signatures on its own initiative.
Why is the GAB obligated to do this, when there is no statutory language that explicitly places such an obligation on the agency? According to the Milwaukee Journal Sentinel, Judge Davis stated that he based his ruling on his interpretation of the Wisconsin Statutes rather than on the constitutional arguments pressed by the plaintiffs. In its brief, the plaintiff’s argued that the language in Section 9.10(3)(b) of the Wisconsin Statutes provides that the GAB must “determine by careful examination whether the petition on its face is sufficient.” According to the Friends of Scott Walker, the command to subject the petitions to “careful examination” necessarily requires the GAB to adopt procedures for striking duplicative, fictitious and unrecognizable signatures. This argument is made in summary form here at pp. 17-18.
Standing alone, the procedures implied by the words “careful examination” could be interpreted in any number of ways, including the requirement that the GAB implement the procedures that the plaintiffs request. However, the fact is that these words do not stand alone. There are other provisions of the recall statute (Chapter 9 Wisconsin Statutes Section 9.10) that, when read together with Section 9.10(3)(b), counsel strongly against imposing such a requirement on the GAB on the basis of one isolated phrase.
The statutory provisions that are inconsistent with Judge Davis’ interpretation of Section 9.10(3)(b) have been thoroughly discussed by the blogger Jay Bullock (Folkbum). I will add a few details.
One merely has to read the statute as a whole. For example, Section 9.10(2)(g) states “[t]he burden of proof for any challenge rests with the individual bringing the challenge.” The grounds for a challenge are listed in Section 9.10(2). Under the statute, a challenge may be brought and the signature removed if the challenger establishes by affidavit or other evidence that the signature is duplicative (Section 9.10(2)(i)) or that the signature is of an ineligible individual (Section 9.10(2)(l)). Under Section 9.10(2)(q), challenges may be brought for grounds other than those specifically listed. That would include challenges based on the assertion that the name on the petition is fictitious or unrecognizable.
In other words, at the prompting of the Friends of Scott Walker, Judge Davis has interpreted the words “careful examination” in Section 9.10(3)(b) so that they require the GAB to affirmatively seek out duplicative, fictitious and unrecognizable signatures when the language of Section 9.10(2) clearly places the burden of removing signatures that fall into these categories on the challenging party and not on the GAB.
Read as a whole, what does the statute mean when it says that the GAB must “determine by careful examination whether the petition on its face is sufficient?” The staute means just what it says. The GAB must identify those defects that can be determined from the face of the recall petition itself and that render a signature ineligible to be counted even if it is not challenged. Section 9.10(2)(e) states:
(e) An individual signature on a petition sheet may not be counted if:
1. The signature is not dated.
2. The signature is dated outside the circulation period.
3. The signature is dated after the date of the certification contained on the petition sheet.
4. The residency of the signer of the petition sheet cannot be determined by the address given.
5. The signature is that of an individual who is not a resident of the jurisdiction or district from which the elective official being recalled is elected.
6. The signer has been adjudicated not to be a qualified elector on grounds of incompetency or limited incompetency as provided in s. 6.03 (3).
7. The signer is not a qualified elector by reason of age.
8. The circulator knew or should have known that the signer, for any other reason, was not a qualified elector.
(em) No signature on a petition sheet may be counted if:
1. The circulator fails to sign the certification of circulator.
2. The circulator is not a qualified circulator.
The statute refers to the failure to meet these requirements as “insufficiencies” and permits those circulating the recall petition to submit affidavits correcting the mistake (Section 9.10(2)( r)).
If the selective parsing of the statutory language argued by the plaintiffs in this case, and adopted by Judge Davis, sounds familiar, it should be. It is eerily reminiscent of the woeful misreading of the statutory provisions governing the publication of new laws that was argued before the Wisconsin Supreme Court in Ozanne v. Fitzgerald. In this instance, the legislature has made a policy choice as to the appropriate procedures in a recall election. If that choice appears unwise or outdated, then the correct remedy is to seek new legislation. Instead, the Friends of Scott Walker encouraged Judge Davis to employ the words “careful examination” as a Trojan horse in order to substitute a different policy choice. That is not the role of the judiciary.
As a result of Judge Davis’ ruling, the GAB is now tasked with developing “reasonable procedures” sufficient to satisfy its new affirmative obligation to seek out and eliminate duplicates and obvious fakes. These procedures were never created by the legislature, so the GAB is in effect re-writing the rules as it goes along, without any legislative guidance. At the same time, the GAB must keep looking over its shoulder at Judge Davis, because it is likely that the Friends of Scott Walker will challenge the adequacy of the new procedures in court no matter what the GAB does.
It appears that the strategy of the Friends of Scott Walker is to use litigation in order to delay any actual recall election as long as possible, thereby allowing public emotions to cool and the anti-Walker sentiment to wane.
If there is a silver lining in the ruling of Judge Davis, it is that he resisted the call of the plaintiffs to extend the holding of Bush v. Gore and find that Wisconsin’s recall procedures violate the Equal Protection Clause of the United States Constitution. For the moment, I will resist the temptation to explain why the Equal Protection argument advanced by the plaintiffs in this case is unprecedented and dangerous. However, the plaintiff’s reliance on Bush v. Gore in its briefs does provide us with a dose of irony.
The holding of the U.S. Supreme Court in Bush v. Gore may have few defenders in legal academia, but one of that small band who defend the decision is Professor Edward Foley at Ohio State University, Moritz College of Law. Professor Foley authored an interesting article entitled “The Future of Bush v. Gore.” At page 997 he argues that the decision in Bush v. Gore was correct because the Florida Supreme Court had gone too far in its rulings. The fundamental mistake that the Florida Supreme Court made, according to Professor Foley, was that it allowed state judges to re-write election rules in the midst of an election.
Isn’t that exactly what today’s decision in Friends of Scott Walker v. GAB does?
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