Marquette University Law School Faculty Blog

“I am extraordinarily patient, provided I get my own way in the end.”

– Margaret Thatcher

One of the world’s most powerful women died today.  Margaret Thatcher, Britain’s only woman prime minister, was 87.

Thatcher, leader of the country’s Conservative Party, was British prime minister from 1979 to 1990.  According to CNN.com, she shared “a close working relationship” with former President Ronald Reagan, “with whom she shared similar conservative views.” Initially dubbed “Iron Lady” by Soviet journalists, she was well known (for better or for worse) for her personal and professional toughness. (For interesting commentary on Thatcher and her impact, see here, here, and here.)                                               

Thatcher was a trailblazer, one of just a very few women to become heads of their country’s government. While women make up nearly half of the world’s population, worldwide, they represent roughly 16% of the members of national governing bodies.  In the United States, women account for only 18.1% of Congress, 33% of the United States Supreme Court, and no woman has ever been elected president.

So, what’s the problem? Some would argue that there’s nothing stopping women from running for office, even for president. True, there are no laws that outright prohibit women’s participation in government.  (Saudia Arabia, long the hold out on allowing women to vote and to serve in government, has finally reversed course.)  But there are other barriers that may be less obvious. Read more »

About a month ago, Anna Kloeden raised thought-provoking questions about how a compulsory voting system might affect the candidates’ substantive positions as well as the ways in which campaigns are conducted. Her post made me wonder what is known about nonvoters. How numerous are they? Where are they on the political spectrum? What are the reasons they don’t vote?

According to a report from the U.S. Census Bureau, 64% of voting-age citizens voted in the 2008 presidential elections, and 71% were registered to vote. The report notes significant variations in voting turn-out depending on race / origin (non-Hispanic blacks and whites had significantly higher voting rates than Asians and Hispanics), age (voting rates increased with age), and education level (higher education levels corresponded with higher voting rates). Nonvoters are not without opinions. A recent survey by the Pew Research Center suggests that non-voting hurts the Democrats: nonvoters overwhelmingly favor Obama (59%) over Romney (24%), and the Democrats (52%) over the Republican Party (27%). Nonvoters express stronger support for a more active government and for the 2010 health care law. As for foreign policy issues, withdrawal of U.S. forces from Afghanistan finds significantly more support under nonvoters than under likely voters. Nonvoters are less supportive of an aggressive stance toward Iran because of its nuclear program. Read more »

Suppose President Obama wins all of the electoral votes from (1) all of the Northeastern states except New Hampshire; (2) Maryland, Delaware, the District of Columbia, and Virginia; (3) all of the states that border on the Pacific Ocean except Alaska; and (4) New Mexico, Colorado, Minnesota, Illinois, and Michigan. Assume also that Governor Romney wins all of the electoral votes in the remaining 30 states. The results? A 269 to 269 tie, in terms of electoral votes.

What would happen then?

If, when the electors vote on December 17, each elector casts his or her ballot for the candidate each supported, the failure of any candidate to achieve a majority of the votes would be certified on January 6 by the President of the United States Senate, who is, of course, Vice President Joe Biden.

Under the terms of the 20th Amendment to the Constitution, the newly elected House of Representatives, which took office on January 3, will then vote to elect a President. Under the 12th Amendment, Congress is required to choose from the three candidates with the highest total of electoral votes from among those receiving electoral votes. Since under this scenario, only Romney and Obama receive electoral votes, the House would have to choose either Romney or Obama.

Under the terms of the Amendment, each state has a single vote, which is determined by how a majority of that state’s Representatives vote. This means that both Alaska and California would have the same one vote, and 26 votes would be necessary to elect a president.

Read more »

Both major party presidential candidates in 2012 seem committed to spending time and money campaigning in Wisconsin, and a few pundits have even speculated that the upcoming election might be decided by the votes of the Badger State.

Local enthusiasm aside, how likely is it that Wisconsin’s electoral votes could actually decide the presidential election? Unfortunately, if history is any guide, not very likely.

Since their state’s admission to the United States on May 29, 1848, Wisconsinites have voted in 41 presidential elections, and the state has supported the winning candidate 32 times.

In ten consecutive elections from 1948 until 1984, the Badger state sided with the winning candidate, and had it not been for the surprising decision to support Dewey over FDR in 1948—after voting for Roosevelt by large margins in the three previous elections—the streak would have been 15 in a row.

However, in only one election—that of 1876—did Wisconsin’s votes actually matter, at least in the sense that in all the other elections, had Wisconsin gone with the losing candidate, the result would still have been the same. Read more »

With just over a month to go to the Aug. 14 primary election that will pick a Republican candidate for US Senate, the four-way race is changing shape, according to results released Wednesday by the Marquette Law School Poll. Support for Madison businessman Eric Hovde is rising while support for former Congressman Mark Neumann and Assembly Speaker Jeff Fitzgerald is declining, the poll results show. Former Governor Tommy Thompson’s support has changed little and he remains in the lead. But with 25% of likely voters in the primary saying they are undecided, the outcome of the race is hard to foresee.

The poll found Thompson supported by 35% of likely primary voters, compared to 34% a month ago, and Hovde supported by 23%, up from 14% a month ago. Neumann was at 10% (down from 16%) and Fitzgerald at 6% (down from 10%).

In match-ups of each of the four Republican candidates against the Democratic candidate in the November final election, Congresswoman Tammy Baldwin, the current outcomes were within the margin of error, with Thompson ahead of Baldwin and Baldwin leading Hovde, Neumann, and Fitzgerald.

The poll also found little change in the presidential race in Wisconsin, with Democratic President Barack Obama ahead of Republican challenger Mitt Romney, 51% to 43%.

In the aftermath of the US Supreme Court decision on the federal health insurance law, there was little overall change in Wisconsinites’ opinions of the law and in the overall numbers for how people rated the Supreme Court. But there was a notable decrease in favorable views of the Court among Republicans and a notable increase among Democrats.

For more information and full results of the poll, click here.

Paul Secunda, as a labor law professor, weighs in on the aftermath of the recall. He makes some good points. But as (I think) one of two people in Wisconsin who teach Election Law (Mike Wittenwyler, an adjunct at UW, is the other), I would like to revise and extend his remarks.

Paul complains of the “8 to 1″ spending advantage said to have been enjoyed by Scott Walker and suggests that this somehow can be attributed to the the results of the Supreme Court’s decision in Citizens United v. FEC. This advantage, while overstated, is the result of a law. But that law has nothing to do with Citizens United.

First, a caveat on the “8 to 1″ figure.

As my colleague, Tom Kamenick, pointed out (and not at my direction, I was off in DC), this metric doesn’t reflect the situation on the ground.  Read more »

G.K. Chesterton, the English essayist and Catholic thinker, said the following:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.”

To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”

This paradox rests on the most elementary common sense. The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable. It is extremely probable that we have overlooked some whole aspect of the question, if something set up by human beings like ourselves seems to be entirely meaningless and mysterious. There are reformers who get over this difficulty by assuming that all their fathers were fools; but if that be so, we can only say that folly appears to be a hereditary disease. But the truth is that nobody has any business to destroy a social institution until he has really seen it as an historical institution. If he knows how it arose, and what purposes it was supposed to serve, he may really be able to say that they were bad purposes, or that they have since become bad purposes, or that they are purposes which are no longer served. But if he simply stares at the thing as a senseless monstrosity that has somehow sprung up in his path, it is he and not the traditionalist who is suffering from an illusion.

G.K. Chesterton, “The Drift From Domesticity,” in THE THING (1929).

It is long past time to stop tearing down fences in Wisconsin. Read more »

In his novel 1984, George Orwell imagined a future world where a government at war could switch allegiances with the country’s enemies and allies and a docile public would accept the revised version of history unquestioningly.  Orwell, a keen observer of the modern world, recognized that history itself could be manufactured and manipulated in the service of broader purposes.

This morning’s edition of the Milwaukee Journal Sentinel contains an opinion piece by Chrisitian Schneider of the Wisconsin Policy Research Institute (WPRI) entitled “Not What They Meant Democracy to Look Like.”  In it, Mr. Schneider argues that the current effort to recall Governor Scott Walker and other elected state officials runs contrary to the original intent of Senator Bob La Follette and other advocates of the recall provisions of the Wisconsin State Constitution.  His op ed is excerpted from a larger piece that Mr. Schneider has authored for WPRI entitled “The History of the Recall in Wisconsin.”

In the newspaper piece, Mr. Schneider makes the assertion that ”a review of documents and press accounts from the time the recall constitutional amendment passed shows that the current use of the recall is far different from what the original drafters had envisioned.”  His argument is that the recall provisions of the Wisconsin Constitution were intended to apply solely to judges and state senators, and not to executive branch officials such as the governor, because the two year term of office in place for governors at the time that the amendment passed would have made the recall of a governor impractical.

The historical record is completely contrary to Mr. Schneider’s assertion.  Moreover, the evidence that he relies upon is completely inadequate to establish the existence of the skewed original intent that he advances. Read more »

We live in interesting times.  A segment of the general public is quick to forgive the killing of two young men in Slinger, Wisconsin and Sanford, Florida as the unavoidable consequence of the exercise of a constitutional right.  Yet at the same time, state court judges who have exercised their constitutional right of self-governance by signing a recall petition are being publicly called out by both special interest groups and the media, as if by signing the petition they have transgressed some moral boundary.  These are interesting times, indeed.

The signing of a recall petition is a right guaranteed by Article XIII of the Wisconsin Constitution.  It is a procedure whereby any voter can request that the continuation in office of an elected official in the State of Wisconsin should be put to the vote of the full electorate.  If a sufficient number of voters sign the petition, a recall election is held.  A recall can only succeed in removing the officeholder if both a sufficient number of recall signatures are filed and a majority of the electorate votes in favor of removal.  The Recall is democratic self-governance in its purest form, and along with the Initiative and the Referendum it is one of the three structural vehicles by which Progressive Era voters sought to bypass the influence that special interests hold on elected bodies.

The Wisconsin GOP has filed an official complaint against Dane County Circuit Court Judge David Flanagan with the Judicial Commission on the grounds that the judge should have recused himself in a case challenging the constitutionality of the Wisconsin Voter ID law.  Must judges who have signed a recall petition subsequently recuse themselves from sitting on any case in which the Governor, or Republican legislators, or the Republican Party of Wisconsin asserts that the signing of the petition evidences a bias against them?  The answer is “no.”  There is no explicit provision that prohibits judges from signing a recall petition or that mandates that they recuse themselves from any politically charged case if they have done so. Read more »

Republican lawmakers have asserted that they have no power to re-draw the election maps at issue in the ongoing Baldus v. Brennan litigation in federal court, despite a suggestion from the three judge panel hearing the case that the legislature make revisions to the law. The 1954 Wisconsin Supreme Court opinion that these lawmakers cite for this proposition does not decide the issue, and the unique factual situation of that case does not correspond to the present situation. In a familiar pattern, it appears that the fierce litigation between state Republicans and Democrats threatens to pull the courts deep into uncharted waters.

The Wisconsin Constitution provides:

“At its first session after each enumeration made by the authority of the United States, the legislature shall apportion and district anew the members of the Senate and Assembly, according to the number of inhabitants.”

(Article IV, Section 3).

In plain English, the legislature must pass a redistricting bill in the first legislative session after the federal census. Once it does so, the general rule is that a valid apportionment law may not be replaced with a law creating new districts until the time of the next census. Of course, if the legislature’s redistricting legislation violates the state or federal constitutions, it is not valid and the legislature must pass a new apportionment bill. The three judge panel in the Baldus case may rule the maps invalid, but it suggested that the legislature might consider passing a new redistricting plan rather than proceed to trial. Read more »

Maybe it was a conspiracy among powerful figures in Washington that did in Herman Cain’s presidential campaign, his campaign manager suggested Thursday at Marquette University Law School.

Mark Block, the unconventional political operative who became a celebrity himself during Cain’s once-hot run for the Republican nomination, said he fully believed from the earliest days of the campaign that Cain was going to be the next president of the United States.

But after more than a month as a front runner last fall, Cain saw the wheels come off his bid with a series of news stories about alleged inappropriate sexual conduct by Cain and Cain’s bungling of some questions, especially one about Libya asked during a Milwaukee Journal Sentinel editorial board meeting.

When Mike Gousha, the Law School’s distinguished fellow in law and public policy, asked Block what happened, Block answered, “I think what happened, this is a little bit of the conspiracy theory in me, he (Cain) scared the hell out of a lot of people in Washington, D.C., and it was time to take him down, take him out.”

Asked by Gousha if he knew who might be involved, Block answered, “Don’t know that, but I can tell you when I find that out, it’ll be a best selling book.”

Asked after the one-hour “On the Issues” session if he could amplify on the subject and whether a conspiracy might have come from the right or the left, Block said he had no evidence and offered no answers.

If not for the events in October, Block said, he was convinced Cain would be well on his way to the Republican nomination now.

Block himself caused a sensation with a campaign ad posted on the Internet last fall in which, after saying how much he believed in Cain, Block took a deep puff on a cigarette and, as the smoke was exhaled, the image dissolved to a photo of Cain. Cain aides estimate the ad has been viewed more than 20 million times. Block said, “It cost us $4 to film that.”

Block provided an introductory video for the Eckstein Hall session which included a taped message from Cain thanking Marquette and Gousha for giving Block a chance to ”share our story.” The video focused mostly on the cigarette ad. The session, including the video, can be viewed by clicking here.

Block, a Wisconsin native, was a long-time and sometimes controversial political operative in Wisconsin. One of the people in audience Thursday was Walt Kelly, who lost a race for Wisconsin Supreme Court in 1997. Block managed the campaign of Kelly’s opponent, Jon Wilcox, and Block was subsequently banned from Wisconsin politics for three years as part of a settlement of charges that he colluded with an independent organization in violation of campaign laws. From the audience, Kelly asked Block whether he was still under investigation for possible collusion with other organizations during the Cain campaign. “Not to my knowledge, Walt,” Block answered.

Asked by Gousha about the interview at the Journal Sentinel in which Cain struggled to come up with an answer when asked what he thought of how President Obama handled Libya, Block said, “In retrospect, what I should have done is cancel that interview.” Cain was exhausted that morning and should have taken a break, Block said.

Block said it is likely the Republican presidential candidate won’t be picked until the national convention this summer. He said candidate Newt Gingrich will pick up a lot of delegates in the Super Tuesday primaries on March 6. Cain has endorsed Gingrich.

Block said Cain would not agree to be the vice presidential candidate and would not accept any Cabinet seat in a Republican administration except possibly secretary of defense. He said Cain remains “extremely upbeat” personally and is working hard to promote the defeat of President Barack Obama this year and to see the “9-9-9” tax plan become law. “He’s on a mission,” Block said.

Block continues to be a big part of that mission – he now has the title of chief of strategic planning and development for Cain’s Solutions Revolution, one of several organizations that Cain has created.

Today, the District IV Court of Appeals issued an opinion that reverses a ruling by the Waukesha County Circuit Court denying a motion to intervene in the case of Friends of Scott Walker v. Brennan.  The practical impact of today’s Court of Appeals decision is that the committees seeking the recall of Governor Walker and other Republican officeholders will be permitted to intervene in the case of Friends of Scott Walker v. Brennan.  As a result, all of the legal rulings made by Judge Davis subsequent to his denial of the motion to intervene must be vacated, so that these legal issues can be reargued with the participation of the recall committees.

This means that Judge Davis’ earlier ruling, interpreting the statutory procedures for recalls under Section 9.10, is now vacated.  On January 5, 2012, Judge Davis ordered the Government Accountability Board (GAB) to take affirmative steps to identify and strike any recall signatures that are fictitious, duplicative or unrecognizable.  Because of this earlier ruling, the GAB went ahead and adopted new procedures, purchased new signature recognition software, and sought additional time in which to review the recall petitions. Read more »