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.
The GAB had argued unsuccessfully before Judge Davis that the statute contains no explicit command for the agency to undertake such duties. Instead, the GAB argued, the the statutory language of Section 9.10 clearly places the burden on the officeholder to bring challenges to suspicious recall signatures. The agency contended that the duty of the GAB was limited to weeding out signatures that are insufficient to meet the technical requirements of Section 9.10(2)(e). In an earlier post, I agreed with the GAB. I argued that Judge Davis’ interpretation of Section 9.10, requiring the GAB to take “reasonable steps” in order to identify invalid signatures, is simply not supported by the statutory language.
In its opinion today, the Court of Appeals signaled that it shares my doubts concerning Judge Davis’ interpretation of the statute. To be clear, the decision of the appellate court today does not directly reverse Judge Davis’s ruling that the statute imposes an affirmative obligation on the GAB to identify and strike invalid signatures. The holding of the Court of Appeals opinion is limited to reversing Judge Davis’ denial of the motion to intervene brought by the various recall committees, and vacating Judge Davis’ earlier ruling so that it can be reargued.
However, in the course of describing the interests of the proposed intervenors that are at stake in this litigation, the Court of Appeals uses language that seems skeptical of the idea that Section 9.10 can be read to place an affirmative burden on the GAB to seek out invalid signatures. Here is how the Court of Appeals summarized the interests of the recall committees seeking to intervene in the case:
To summarize, the recall committees have an interest in the complaint’s proposed relief because such relief may include new procedures not required by law that may result in (1) striking valid signatures and placing an increased burden on the committees at a later stage of the review process and (2) causing delay to the recall process.
(Opinion at p. 16).
According to the Court of Appeals, the recall committees had an interest in the lawsuit filed by the Friends of Scott Walker, and ultimately a right to intervene in that case, because the lawsuit sought a form of relief that would increase the burden on the recall committees. The Court of Appeals gave three examples of how the placing of an affirmative duty on the GAB to “look for and eliminate“ certain types of signatures could act to increase the burden that the statute would otherwise place on the recall committees.
First, if the GAB applies new, stricter criteria for the removal of addresses that the GAB concludes are illegible, then the recall committees must expend additional resources to verify that the addresses are correct or else risk losing those signatures. Second, the GAB might adopt procedures for eliminating duplicate signatures that would eliminate a signature even in circumstances where the challenger would have been unable to provide any evidence that a duplicative signature existed (i.e., where both John Smith, Sr. and John Smith, Jr. in the same household sign as “John Smith”). Third, the GAB procedures for removing fictitious names might remove names that actual voters share with celebrities (i.e., an actual “George Clooney”) on the assumption that the name is suspicious, thus placing the burden on the recall committees to expend resources in order to verify the signature.
As currently written, the statute places the burden on the officeholder to challenge any signatures that fall into the above situations. Therefore, unless a challenge is filed the statute itself does not require the petition circulator to supply one iota of evidence proving the validity of such signatures. However, the new procedures adopted by the GAB in the wake of Judge Davis’ ruling may force the recall committees to come forward with such evidence.
What these examples given by the Court of Appeals illustrate is that the new recall procedures sought and received by the Friends of Scott Walker impose an extra burden on the recall committees in a manner inconsistent with the overall statutory scheme of Section 9.10. The Court of Appeals points out that, if the GAB attempts to play an affirmative role in identifying and eliminating suspicious signatures, it runs a very real risk of improperly shifting the burden from the shoulders of the officeholder challenging the signature onto the shoulders of the recall committees:
The relief sought potentially places an increased burden on the recall committees to prove that certain valid signatures are indeed valid. If the board is required to “look for and eliminate” certain classes of signatures, that may cause the board to strike signatures that appear to be improper, but which in fact are not improper. Because these signatures are indeed valid, the officeholder would not have been able to produce the affidavits or other evidence required to support a successful challenge to them under WIS. STAT. sec. 9.10(2)(h) and (3)(b). Nonetheless, the court order [sought by Friends of Scott Walker] may require the board to strike such signatures in its initial review.
(Opinion at p. 10).
Such a result runs directly counter to the statute itself, which clearly states in Section 9.10(2)(g) that “[t]he burden of proof for any challenge rests with the individual bringing the challenge.”
In addition to the foregoing discussion, the Court of Appeals opinion also underscores the fact that “the recall committees have an interest in holding timely recall elections, as embodied in the recall statutes and our Constitution.” (Opinion at p. 16). Unfortunately, it may already be too late to prevent the recall elections from being delayed substantially.
Therefore, while Judge Davis’ interpretation of the statute was not directly reversed, the overall tenor of the Court of Appeals opinion is not friendly to the strained interpretation of Section 9.10 that was advanced by the Friends of Scott Walker. The language of the Court of Appeals decision might well give Judge Davis pause when he is asked to reconsider the statutory interpretation issue.
Will that happen? It is unclear where the case goes from here. The Friends of Scott Walker could appeal the decision of the Court of Appeals allowing the recall committees to intervene to the Wisconsin Supreme Court. Alternatively, the Friends of Scott Walker could simply allow Judge Davis to vacate his earlier ruling as directed and then renew its argument concerning the meaning of Section 9.10 in the circuit court, this time with the recall committees as parties. In either event, the Court of Appeals has invited a briefing on the question of whether to order relief or to order a stay of its decision, pending further proceedings.
As the debate over the correct recall procedures continues, it is possible that the Friends of the Scott Walker might downplay its statutory arguments and place more weight on its unprecedented argument that the Fourteenth Amendment of the United States Constitution requires the GAB to account for the so-called “rights” of non-voters. Judge Davis was wise to resist such a sweeping expansion of Equal Protection doctrine when he issued his earlier ruling, and he would be wise to reject such a novel theory if it were advanced again. The Equal Protection Clause is not an open invitation to the courts to remake election procedures to the liking of the judiciary, and the Supreme Court’s decision in Bush v. Gore does not suggest otherwise.
This procedural morass, occurring in the midst of a recall campaign where over one million Wisconsin voters have exercised their constitutional right to demand a recall, was entirely avoidable. The Government Accountability Board was created as a non-partisan agency precisely because the legislature decided that election procedures should not become playthings for partisan appointees, nor changed willy-nilly in the middle of campaigns. If anything, the ongoing saga of Friends of Scott Walker v. Brennan should remind us of the wisdom of that decision.