Friends of Scott Walker v. GAB Changes the Recall Rules Mid-Stream

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?


This Post Has 9 Comments

  1. Tom Kamenick

    Judge Davis’s written order may prove otherwise, but his oral ruling didn’t rest on the “careful examination” language (I was in the court room observing). Rather it rested on the substantive law in the statutes, as recognized by the GAB’s own regulations, that such signatures are invalid and can’t be counted, combined with general statutory language commanding the GAB to enforce the election laws.

    As Judge Davis pointed out, the officeholder challenge provisions are insufficient to actually weed out all signatures that should not be counted – FoSW brought in evidence from a past recall where “Bug Bunny” had been challenged and UPHELD by the GAB because the challenger had failed to provide any affidavits or other sworn evidence. Kevin Kennedy testified, and Assistant AG Beilin argued, that they believed this was the correct result under their (now held incorrect) interpretation of the statute.

    The Judge also, interestingly, agreed with the constitutional equal protection claim, but chose not to rest his ruling on it because it was a matter of first impression and he had a statutory way to decide the case.

    Personally, I think the strength of the constitutional case is highlighted by the GAB’s attorney’s claim that “The challenge procedures are adequate to protect Walker’s interests.” Even if that’s true, those procedures are NOT adequate to protect the constitutional interests of the qualified electorate who have chosen not to sign a recall petition. Those electors’ interests and Walker’s do not align even close to perfectly, so Walker’s ability to challenge does not adequately protect those electors’ interests.

  2. Ed Fallone


    Can you tell us which specific statutory section(s) Judge Davis referenced in his oral ruling and whether the parties addressed that language in their briefs? It did not appear to me that the plaintiffs focused on much more than Section 9.10(3)(b) in their arguments regarding state law.

  3. Tom Kamenick

    I wish I had had the statute in front of me as I was listening and watching, because he rattled off a lot (and 9.10 is a fairly long section). The various paragraphs and subparagraphs of 9.10(2) were mentioned a lot especially (e) – (i) and described as containing substantive rules on what can and cannot be counted as well as procedural rules on challenges.

    He also referenced the GAB regulations containing substantive rules that the GAB must enforce. I can’t recall which ones, but glancing over them myself, I’m thinking it was from GAB ch. 2, like 2.09(4) “Only one signature per person for the same petition, is valid” and other statements that complete addresses are required and only one signature may be counted in 2.05 (which is applied to recall petitions by 2.09).

  4. Ed Fallone

    I am still looking for statutory language that actually directs the GAB to do something, rather than general language relating to whether a signature is or is not sufficient. It seems to be a substantial inference to impose affirmative duties on an agency where the statute is silent (or, in this case, affirmatively places those duties on the challenger of the petition). At least Section 9.10(b)(3) is addressed to the GAB. However, as I discuss above, the obligation that it imposes does not cover the grounds for challenging an otherwise sufficient signature.

  5. Ed Fallone

    Another interesting legal issue raised by Judge Davis’ ruling is whether his interpretation of Chapter 9 is in conflict with provisions of the campaign finance laws in Chapter 11.

    Under Chapter 11, Section 11.26(13m), the public official subject to a recall campaign is allowed to conduct unlimited fundraising for purposes of legal fees and other expenses related to the response to a recall petition (i.e., reviewing signatures and bringing challenges). See this memo from the GAB.

    The ruling that the GAB must take affirmative steps to resolve the very same issues that would otherwise be subject to an official’s challenge would seem to render this provision of the campaign finance laws superfluous.

    At the same time, any residual funds raised during the petition circulation period that are NOT actually used for the limited purposes set forth in Section 11.26(13m) (because Judge Davis’ ruling makes it unnecessary to use the funds for bringing challlenges to signatures) may be converted to the candidate’s use in the following election campaign, but only if the residual funds comply with the general dollar amount limitations for individual contributions contained in Chapter 11.

    h/t Heather DuBois Bourenane.

  6. Tom Kamenick

    Officeholders can still file challenges and partake in their own (likely expensive, for 500k+ signatures) review. I especially see the likelihood of duplicate signatures caught by one review and not the other, disagreements over whether an address is legible enough, and names that are fictitious but perhaps not obviously so. So I don’t see that as superfluous – I can’t imagine how you could unless you think that the GAB review completely obviates any reason for the officeholder to do review himself.

    Regardless, isn’t your argument that Davis’s ruling “is in conflict” with the unlimited funds provision completely belied by your admission that any leftover funds can’t be rolled over into the general campaign fund unless they would comply with the rules for normal campaign contributions?

    I really don’t think there’s much “there” there.

  7. Edward A. Fallone


    Your point is well taken. The two provisions are not “in conflict.” What I wrote was that the existence of Section 11.26(13m) is in conflict with the meaning that Judge Davis is reading into Chapter 9. I suppose a better word would be “inconsistent.”

    The point of my last comment was to draw a contrast. On the one hand, we have explicit statutory provisions that provide a mechanism for office holders to challenge duplicate, fictitious and unrecognizable signatures, combined with special fundraising rules that the legislature passed that allow unlimited contributions for this purpose.

    On the other hand, there are no explicit provisions in the statutes that direct the GAB to look for and eliminate duplicate, fictitious or unrecognizable signatures. Just a direction not to count signatures that are insufficient under Section 9.10(2)(e).

    I think that it is further evidence as to where the statutory responsibilities lie.

  8. ron whittle

    What is the legality of this recall? Scott Walker has done NOTHING wrong. He has done what he said he was going to do, AND he was elected on that basis by the MAJORITY of the people in Wisconsin…PERIOD.

    This whole mess is because of a bunch of cry-babies who FINALLY got their “chains pulled” by someone who is finally trying to put some fiscal sanity back into our state government.

    What is the legality?

    Thank you.


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