More Doubts About the Court’s Resolution of the John Doe Investigation

Posted by:
Category: Constitutional Interpretation, Constitutional Law, Election Law, Public, U.S. Supreme Court, Wisconsin Supreme Court
Leave a Comment »

Today, the United States Supreme Court summarily affirmed the decision of a Three Judge Panel of the U.S. District Court for the District of Columbia in  Independence Institute v. Federal Election Commission.  By affirming the panel in this case, the U.S. Supreme Court seriously undermined the legal rationale that the Wisconsin Supreme Court relied upon when it dismissed the John Doe investigation into possible illegal campaign coordination during the Governor Walker Recall Election.  In one sense, today’s action by the U.S. Supreme Court merely establishes the narrow rule that “electioneering activity,” which encompasses a variety of activity beyond express advocacy on behalf of a candidate for office, is subject to regulation without violating the U.S. Constitution.

However, the action of the U.S. Supreme Court is significant because it also necessarily rejects a converse proposition: that the scope of permissible government regulation of election activity is limited to conduct which constitutes “express advocacy.”  The Independence Institute case is relevant to the John Doe Investigation because both cases raise the legal question of whether the U.S. Constitution permits any regulation of election activity other than “express advocacy” or its functional equivalent.  “Express advocacy” is usually defined as a communication that expressly advocates for the election or defeat of a clearly identified candidate.

The Independence Institute is a nonprofit organization.  It challenged disclosure requirements contained in the McCain-Feingold Act which would have required it to disclose its donors if it spent more than $10,000 on “electioneering communications” in the 60 days before a general election (or the 30 days before a primary election).  The group argued that this statutory requirement was unconstitutional because it went beyond the regulation of express advocacy.  As described by Judge Wilkins in an earlier proceeding in the D.C. Circuit, the argument of the Independence Institute reduced to the argument that “the only speech that should be considered an electioneering communication, and therefore trigger the BCRA’s reporting and disclosure requirements, is speech that is ‘unambiguously related’ to a campaign.”  The group wanted the Court to rule that the disclosure requirement in the statute could only be enforced in instances involving express advocacy.

If this sounds familiar, it is because the legal argument advanced by the Independence Institute is parallel to the reasoning adopted by the Wisconsin Supreme Court in its opinion ending the John Doe Investigation (State ex rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85).  Read more »




On the Issues: “Politically Homeless” Activist Calls for Change in the System

Posted by:
Category: Election Law, Political Processes & Rhetoric, Public, Speakers at Marquette
Leave a Comment »

Katherine Gehl says, “I like to say I’m politically homeless.” It was clear at an “On the Issues with Mike Gousha” program at Marquette Law School on Wednesday that she does not use that label because she is not involved. In fact, the opposite is true: She is deeply involved.

Her sense of “homelessness” comes from her frustration with what she calls “the political-industry complex.” The two major parties, Congress, the executive branch, Washington lobbyists, and the national media are all thriving, but they are not producing solutions to the nation’s problems, Gehl said. And while Washington thrives, problems go unsolved and people grow increasingly dissatisfied. She said the system and particularly the two major political parties do not have the incentives businesses have to respond constructively to competition. “Two parties equals zero results,” she said.

Gehl (pronounced Gayle) is a former Democrat who describes herself now as “a proud independent, a centrist, a pro-problem-solving, non-ideological citizen who wants to see government deliver on its promise to the citizens.” She adds, “That is not an ideology that fits with either of the parties.” Read more »




Electoral College – Keep or Toss?

Posted by:
Category: Constitutional Law, Election Law, Political Processes & Rhetoric, President & Executive Branch, Public
2 Comments »

electoral-college-2016By Mathew O’Neill

During the Twilight craze, the country was split between Team Edward and Team Jacob.  The battle was over Bella Swan’s heart.  Edward, a 200-year old vampire, was devastatingly handsome, kind, chivalrous, and his skin sparkled in the sun.  Jacob, a teenage werewolf, was brash, muscular, impulsive and fiercely protective of his tribe and Bella.  Oh, and Edward murdered a few thousand people but felt badly about it, while Jacob only killed vampires but had a bad mullet.  I was decidedly Team Jacob.

After the 2016 election, the country is split about the Electoral College.  There are again two camps: Team Keep and Team Toss.  Before going into the merits of each, some brief background.

As of this writing, Donald Trump won 56% to 44% in the Electoral College (290 to 232), while Hillary Clinton leads in the popular vote count 62,523,844 to 61,201,031.  So, while Trump romped to an 11-point Electoral route, he actually got clobbered by 1,322,813 votes.  What gives?  I thought this was a democracy.

This anomaly is the work of the venerated Electoral College.  The College was created in Article II, Section 1 of the Constitution, which states in part:

The executive Power shall be vested in a President of the United States of America.  He shall hold his Office during the Term of four Years, and, together with the Vice President chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole number of Senators and representative to which the State may be entitled in Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

The 23rd Amendment granted at least three Electors to the District of Columbia, bringing to 538 the total number of current Electors: 435 Representatives, 100 Senators and the D.C. trio.

The Constitution does not direct how the states must “chuse” their Electors.  In colonial times, most states did not call for a popular election to select their Electors.  Instead, party bosses made those decisions.  Eventually the cigar-smoke cleared, and today all states and D.C. hold a general election for President and Vice President, and nearly every state (48 of 50) has chosen to award all of its Electors to the winner of that state’s popular votes.  Thus, because the margins in various states can differ (Clinton won California by 3.5 million votes; Trump won Florida by 20,000 votes), it is possible to win the Electoral College, and thus the keys to the White House and a cool plane, while at the same time lose the overall popular vote.

Which raises the question: is this acceptable? Read more »




There Is Real Election Fraud (Just Not What You Think)

Posted by:
Category: Civil Rights, Election Law, Political Processes & Rhetoric, Public
1 Comment »

stamp_us_1977_3c_americanaI have been working on elections since 2000, when I helped organize a team to defend a potential recount of Wisconsin’s narrow victory for Al Gore (never happened; see Bush v. Gore).  Since 2004, I have trained thousands of attorneys to observe at polling places to ensure every eligible voter is allowed to cast a regular ballot.  That is, and should be, the only goal of our election laws: enfranchisement!

In 2005 I testified before Congress about Wisconsin’s voting laws, the lack of any actual voter fraud, and the many real administrative problems caused by running a national election in one day.  In subsequent years, I helped compile reports of Election Day issues, defended individuals accused of voting irregularities, and was part of the GAB committee to create formal rules for observers.

So, I have some background in election law.

To put it mildly, I was surprised to hear a candidate for President state: “Voter fraud is very, very common.”  Not just common, but VERY, VERY common.

The statement, if meant to suggest rampant fraudulent voting, is categorically false.  Fraudulent conduct by voters is exceedingly rare.  A comprehensive study published in 2014 confirmed 31 cases of in-person voter fraud from 2000 to 2014, out of more than a billion votes.  In stark numerical terms, that is one act of fraud for every 32 million votes.  When defending Wisconsin’s harsh Voter ID law, the State “could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past.”  Frank v. Walker.  In other words, voter fraud is very, very, very uncommon.

There is, however, an election fraud that has become common in the past decade: the suggestion that voting laws need to be tightened to combat voter fraud.  This is the BIG LIE. It has been used across the country to justify a stunning array of laws designed to make it harder to vote. Read more »




An Election Day Primer for Wisconsin Voters*

Posted by:
Category: Civil Rights, Election Law, Milwaukee, Public
1 Comment »

Voting_United_StatesTomorrow is Election Day. It’s important to vote, so make sure you know where and when you can cast your ballot. New for Wisconsin voters this year is a photo identification requirement. I break down the voting process below to demystify and clarify it.

The main thing, though, is to vote. Even if you don’t like your choices for president, there are down-ballot races, including a state-wide U.S. Senate race between Russ Feingold and Ron Johnson and any number of races for federal or state representatives and other local officials, for which your vote matters. Read more »




Elections, the Holocaust, and the Senate Debate: Glimpses of Three Law School Events

Posted by:
Category: Election Law, Political Processes & Rhetoric, Public, Speakers at Marquette
1 Comment »

Glimpses of three important events in recent days at Marquette Law School:

The Wisconsin Elections Commission is less than four months old and so far it has made only two major decisions, each supported by all six members. Will the new body, created to take over the election oversight role previously played by the state’s Government Accountability Board, be a steady and responsible force for conducting elections well and avoid partisan divisions?

During  an “On the Issues with Mike Gousha” program Wednesday (Oct. 26, 2016), two of the leaders of the commission conveyed a message of professionalism and commitment to doing the jobs well . They also expressed general confidence in the quality of election practices in Wisconsin.

But Mark Thomsen, chairman of the commission and a Milwaukee lawyers, and Don Millis, a commissioner who is a lawyer from the Madison area, outlined some of the difficult and controversial issues that they face this fall and beyond, such as handling of voter identification requirements  and early voting, and showed some differences between them that reflect their own partisanship. Read more »




How Did We Get Here?

Posted by:
Category: Constitutional Law, Election Law, Legal History, Political Processes & Rhetoric, Public
1 Comment »

Part Six of a Six Part series on Election Law, providing context to our system of government, our election process and a little history to evaluate and consider in the candidate-debate.

In an age where the presidential vote is relatively close, a two-party system dominates politics, and the average voter recognizes that voting for an independent/splinter candidate has no real shot at electoral success, is this really what the framers intended in 1787 when drafting the Constitution of the United States?

Doubtful.

Not only was the Electoral College system problematic almost from the moment it left the starting block, but the election process has grown more complicated, more winner-takes-all, and more divisive than perhaps the delegates could ever have imagined.

For instance, in 1797, Ththomas_jefferson_by_rembrandt_peale_1800omas Jefferson, the then-sitting Vice President, wrote a letter to his colleague, Edward Rutledge, in which Jefferson reported that the mood of the nation’s capital had become politically divisive:

“The passions are too high at present, to be cooled in our day. You & I have formerly seen warm debates and high political passions. But gentlemen of different politics would then speak to each other, & separate the business of the Senate from that of society. It is not so now. Men who have been intimate all their lives, cross the streets to avoid meeting, & turn their heads another way, lest they should be obliged to touch their hats. This may do for young men with whom passion is enjoyment. But it is afflicting to peaceable minds. Tranquility is the old man’s milk.” (Jefferson to Rutledge, June 24, 1797, in Jefferson, Papers, 29:456-57.)

Does Jefferson’s report of a political divide — in 1797! — sound familiar when looking at today’s election debate?

Read more »




The Teachings of Elections Past

Posted by:
Category: Congress & Congressional Power, Constitutional Law, Election Law, Legal History, Political Processes & Rhetoric, Public
1 Comment »

john_quincy_adams_-_copy_of_1843_philip_haas_daguerreotypePart Five of a Six Part series on Election Law, providing context to our system of government, our election process and a little history to evaluate and consider in the candidate-debate.

In the run-up to Election Day, maps of the United States will be colored in as red or blue. This so-called “electoral map” is the focus of all the debate, particularly for the presidency, with pundits asking what color the “swing states” will shade. Of course, the maps don’t show green, purple, or even different tints of red or blue. There are only two colors, red or blue. So why is that?

Without getting too far in the weeds, as it were, and from a political science view, the shading is based on the “winner-takes-all” principle. One party wins and everyone else loses. When a party loses, that party is without representation. Weaker parties are pressured to join a more dominant party in hopes of gaining a voice. This leads to party-dominance. Voters learn that, because of party dominance, voting for a third party candidate is ineffectual to the result, and hence alignment into a two-party race between winners and losers.

And, in terms of the presidency, by devising a system of “electors” as opposed to popular vote, history teaches us that an indirect electoral-election scheme can lead to odd results.

The elections of 1876, 1888, and 2000 produced an Electoral College winner who did not receive at least a plurality of the nationwide popular vote. What did this mean? It meant that in 2000, Al Gore received 543,895 more popular votes than George Bush, yet lost the election. The same was true for Samuel J. Tilden (New York) losing to Rutherford B. Hayes in 1876 and Grover Cleveland (New York), the incumbent President, losing to Benjamin Harrison (Indiana) in 1888.

There is also tie-breaker history. Per the Twelfth Amendment, a candidate must receive an absolute majority of electoral votes (currently 270) to win the presidency. If no candidate receives a majority of electoral votes in the election, the election is determined by the House of Representatives. The House chooses the President from one of the top three presidential electoral vote-winners. (A run-off vote for Vice President belongs to the Senate.)

As to a run-off presidential vote, this has happened only once since 1804. Read more »




ACS Panel Explains Voting Rights Litigation in Wisconsin

Posted by:
Category: Civil Rights, Constitutional Interpretation, Constitutional Law, Election Law, Judges & Judicial Process, Marquette Law School, Political Processes & Rhetoric, Public, Speakers at Marquette, Wisconsin Law & Legal System
Leave a Comment »

img_5794-meOn October 20, I had the honor of moderating a panel discussion at the Law School devoted to Voting Rights Litigation in Wisconsin.  The event was co-sponsored by the Marquette University Law School Student Chapter of the American Constitution Society and the Milwaukee Chapter of the American Constitution Society (ACS). A crowd of approximately 60 persons witnessed a lively presentation on the right to vote under the U.S. Constitution, recent legislation in Wisconsin that places burdens on the ability of some people to vote in our State, and the status of litigation in the federal courts challenging these state laws.

The event began with a welcome from the Chair of the Milwaukee Chapter of the ACS, Attorney Craig Mastantuono.  Attorney Mastantuono began with a description of the mission of the American Constitution Society and the benefits of membership.  He also noted the excellent timing of the day’s event, given the attention currently being given to the integrity of the American voting system.  Then Attorney Mastantuono introduced the Mayor of Milwaukee, the Honorable Tom Barrett.

Mayor Barrett began his remarks by providing the Marquette University law students in attendance with a bit of career advice: namely, the importance of being nice to your colleagues in the workplace.  Turning to topic of the federal judiciary, Mayor Barrett criticized lawmakers who impose litmus tests on judicial appointees, in a misguided attempt to ensure that there is “only one type of thinking in our court system.”  Mayor Barrett also expressed his disappointment in the fact that Wisconsin is no longer a national leader in ensuring access to the ballot, and criticized recent state laws that have made it more difficult to vote in the City of Milwaukee.  Finally, while he touted the benefits of early voting as a means of improving ballot access, the Mayor explained that there are limits to the City’s ability to expand the early voting process due to the City’s interest in maintaining a well-administered voting process. Read more »




The School Of Electoral College

Posted by:
Category: Constitutional Law, Election Law, Legal History, Political Processes & Rhetoric, Public
Leave a Comment »

Part Four of a Six Part serwashington_constitutional_convention_1787ies on Election Law, providing context to our system of government, our election process and a little history to evaluate and consider in the candidate-debate.  Prior blog posts mentioned party-politics as having emerged during the Constitutional debate — in the framing days of the late eighteenth century, delegates began aligning along federalist and anti-federalist divides. Alignment shaped the compromise that became the Constitution of the United States, with the process of choosing the President — indirectly through electors — an example of compromise at work.

The compromised solution was complicated. Rather than allowing election by the populous or allowing Congress to choose the position, each state was given a number of “electors” and these electors would vote for the President.

Each state was left to determine the manner of selecting their electors, thus allowing the states a role in choosing the president. The electors would choose the president on the same day, all in an effort to even the playing field, as it were, in election and governance.

So how did it work, at least initially?

It was a problem.

Read more »




Whom Do I Want As My King?

Posted by:
Category: Constitutional Law, Election Law, Legal History, Political Processes & Rhetoric, Public, Uncategorized
1 Comment »

2014_1006_1024px-mount_rushmore2_largePart Three of a series on Election Law, providing context to our system of government, our election process and a little history to evaluate and consider in the candidate-debate.  Prior blog posts discussed the lead-up to the Constitutional Convention of 1787 and provided context to the debate over the American system of government. Here is further context.  For a more in depth discussion and a great read — upon which much of this blog finds its genesis — look to Ray Raphael’s book Mr. President: How and Why the Founders Created a Chief Executive (2012).

I begin with the delegates. Think of it like this: If you were a wealthy American landowner in the late eighteenth century, and held a position of prominence for some time, you probably wanted to ensure that, whatever government governed, your status remained unchanged. Should not your vote count a little more than someone else? Can we really let the people select of our elected officials?

On these basic questions the delegates to the Constitutional Convention were either conflicted, or outright opposed. As Roger Sherman, the representative from Connecticut proclaimed, “The people immediately should have as little to do as may be about the government. They want information and are constantly liable to be misled.” On the flip side was Alexander Hamilton who touted the “genius of the people” in qualifying the electorate.

Basically, even if a Constitutional Convention delegate agreed to a national government and an “executive branch” to that government, he still had open questions as to what should it look like, how much power it would have, and who would decide the person/persons for such an office.

So how did the delegates get from point A to point B? First, the delegates took the unusual move of calling for secrecy in their debates, something unheard of then and which continues to be a source of confounding discussion even in today’s society; in 1787, and as often argued today, the delegates wanted the freedom to speak freely.

Second, the delegates used England’s King George III as a counter-point to an executive. They wanted no part of a monarchy, or despotic leader, yet needed the executive position to have some teeth so that it would be recognized internationally and complement intra-national needs. Read more »




What Happens if Trump Drops Out?

Posted by:
Category: Constitutional Law, Election Law, Judges & Judicial Process, Political Processes & Rhetoric, Public, U.S. Supreme Court
3 Comments »

Donald_Trump_-_CaricatureWhat happens if Donald Trump drops out of the presidential race?  Some Republican politicians have begun to call on Mr. Trump to step down as the Republican nominee for President (he cannot be forced out).  If this happens, the Republican Party would then select a new nominee for President.

It might be conceivable for Donald Trump to voluntarily step down, and for the Republican Party to select an alternative nominee.  However, the real issue is whether the name of the alternative nominee would appear on the ballots of a sufficient number of states to permit an Electoral College victory.  At this late date in the election cycle, the names of presidential candidates on absentee ballots have already been finalized in many states.  In fact, early absentee voting using the final ballots already is underway in Wisconsin and many other states such as California, Ohio and Indiana.  Every day, more state deadlines for placing names on the ballot pass, and it is probably already too late to prevent Donald Trump’s name from appearing as the Republican nominee on a majority of the ballots used by states across the country.  To get state officials to print new ballots and then allow re-voting of ballots already turned in would require 1) litigation in state courts across the country and 2) the willingness of a large number of these state court judges to adopt an unprecedented procedure based upon vague “emergency” arguments.  Such a high stakes multi-state litigation effort would make the combative Bush v. Gore lawsuit look like a law school moot court competition in comparison.   Read more »