I have written a few things on my personal blog about the GAB’s authority and duty to conduct a more thorough review of recall petitions than it apparently intends to conduct. Last Thursday, Judge Mac Davis ordered a more extensive review. Ed Fallone thinks that the judge got it wrong. I disagree. Here’s why.
Ed argues that “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 see two problems with this statement. First, the GAB’s obligation upon the filing of a petition is not limited to the elimination of signatures for the reasons set forth in § 9.10(2)(e). To the contrary, the obligation imposed on GAB is to “determine by careful examination whether the petition on its face is sufficient.” Wis. Stat. § 9.10(3)(b). Whatever that duty is, it is nowhere limited by § 9.10(2)(e). Second, as we will see, even if it is so limited, § 9.10(2)(e) does not relieve GAB of the obligation to do what Judge Davis ordered it to do.
So what does this duty of “careful examination” entail?
I don’t think it helps us much to note that the statute provides for a challenge procedure in which the burden of proof is on the challenger. GAB’s duty of careful examination is independent of the filing of any challenge. It has to do something. As Judge Davis noted, while the GAB does perform a quasi-judicial function, it also has a separate duty to administer and enforce the election laws.
We know two things. First, the examination requirement is limited to the face of the petition. This might be read to mean that the GAB need not resort to extrinsic sources or examine the circumstances under which any signature was obtained. My understanding (there is no written order yet) is that Judge Davis held that the GAB should consult extrinsic sources such as web searches, DMV lists, and voter rolls in the context of fictitious names. I’m not sure I’d go that far, although one of my colleagues at WILL makes a pretty good argument that testing the facial validity of the petition does require reasonable efforts to verify that, for example, an address actually exists.
Second, the statute specifies that the purpose of this examination is to determine whether the petition is, on its face, “sufficient.” A petition that is sufficient to initiate a recall is one which has been signed by the requisite number of qualified electors within the prescribed time frame. The GAB’s review must determine whether, on the face of the petition, that burden has been met
Why doesn’t this require the GAB to eliminate duplicate signatures? If careful examination requires determining whether the petitioners have met their number, one can’t count the same elector more than once. A petition that meets its number by counting the same elector multiple times is not facially adequate.
It also seems obvious that one must—at least—eliminate signatures where the address is illegible. Such signatures cannot be determined to be those of an elector residing in Wisconsin. They are facially invalid.
I would argue that the GAB must also eliminate names where the signature is illegible. There is no way to conclude that a qualified elector has signed if you can’t discern his or her name. It is not clear to me, however, whether Judge Davis so ordered and it seems a closer question. The law does not generally require signatures to be legible (or even to be signatures), but perhaps where, as here, the signature must serve as evidence that an eligible elector has signed, that interpretive gloss is inapplicable.
Fictitious names are a more difficult matter. The fictitious nature of the name must be apparent on the face of the petition, and it is, of course, possible that there are people in Wisconsin with odd names or even the same name as cartoon characters or genocidal dictators. It’s possible.
But when, in the course of Thursday’s ruling, Judge Davis said that “[c]ounting the signature of Bugs Bunny is something only lawyers could try to make seem OK,” I think he was calling for a common sense approach. There may well be signatures that are fictitious on their face (and, of course, their exclusion — as well as the inclusion of borderline questionable names — may be challenged.)
As I said, nothing in the statute limits this review to the criteria set forth in § 9.10(2)(e) nor does such a limitation follow from the structure of the statute. Given that § 9.10(2)(e)) includes things that cannot be determined by a facial review, see, e.g., §§ 9.10(2)(e)6-8, it seems a stretch to read them as constituting a definition of or limitation upon the “careful examination” requirement.
More fundamentally, limiting the GAB’s “careful examination” requirement to the § 9.10(2)(e) criteria doesn’t relieve the GAB from doing any of the things that Judge Davis has ordered it to do. For example, § 9.10(2)(e)4 provides that a signature may not be counted if “[t]he residency of the signer of the petition sheet cannot be determined by the address given.” If one cannot read the address, then one cannot determine residency.
Sec. 9.10(2)(e)5 provides that a signature may be rejected if it is “of an individual who is not a resident of the jurisdiction or district from which the elective official being recalled is elected.” If a name appears to be obviously fictitious, then this requirement has not been met.
Once again, I think a reasonable argument can be made that § 9.10(2)(e) requires illegible names to be stricken as well. There is no way to determine that the criteria set forth in § 9.10(2)(e) have been met — on challenge or otherwise — if the name of a signatory cannot be read. (Again, it is not clear to me that Judge Davis went that far.)
Any reading of the statute that places a burden on the challenger to prove that someone whose name or address can’t be read is not anyone who lives anywhere in Wisconsin is, to put it mildly, highly problematic and fundamentally at odds with the statutory requirement that a requisite number of qualified electors sign within a prescribed time frame.
While the § 9.10(2)(e) criteria do not include duplicative signatures, no one disputes that there is an obligation to determine whether the petitioners have hit their number, and no one believes that this number must not consist of distinct individual electors, i.e., in meeting the number you can’t count the same elector more than once.
The best argument that I can see against not counting duplicates is that the statute authorizes a challenger to request the elimination of duplicative signatures . § 9.10(2)(i). But the grant of such authority to the challenger does not mean that the GAB may ignore facially duplicative signatures. In fact, given the clear obligation to determine whether the requisite number of signatures has been obtained at the “careful examination” stage, it makes little sense to think so.
I am not sure, in any event, that there is a clear divide between the bases for “not counting” a signature under § 9.10(2)(e) and for striking a signature under other parts of § 9.10(2). For example, both permit “not counting” or “striking” ineligible electors. Compare, e.g., § 9.10(2)(e)5-8 with § 9.10(2)(L) and (q). This suggests that they are not mutually exclusive.
But if one must have such a division, a more supportable distinction is that the former addresses facial review and the latter are directed toward challenges based on extrinsic evidence. See § 9.10(2)(h)(“ Any challenge to the validity of signatures on the petition shall be presented by affidavit or other supporting evidence demonstrating a failure to comply with statutory requirements.” (emphasis supplied)).
In past recalls, these questions haven’t been as salient because the number of required signatures has not been so large as to potentially overwhelm the GAB and recall opponents. This time may be different. The GAB’s reluctance to do more seems not so much to be based on an absence of statutory authority (in fact, I don’t think they argue that they can’t do what Judge Davis has ordered), but a belief that the agency lacks the resources to do it. But that doesn’t justify ignoring what seems to me a relatively clear statutory command to do more.
Even if one could establish a history of passive review by the GAB, past practice should not override statutory obligation. This does not, as Ed suggests, change the rules in the middle of the game or disturb the settled expectations of recall proponents. Certainly, they did not believe that they could recall the Governor on the basis of duplicate, illegible, and fictitious signatures that recall opponents would not have the time or capacity to detect.