The Use and Misuse of History

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.

Continue ReadingThe Use and Misuse of History

Signing a Recall Petition Does Not Require Judicial Recusal

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.

Continue ReadingSigning a Recall Petition Does Not Require Judicial Recusal

Does the Legislature Lack the Power to Revise the Redistricting Law?

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.

Continue ReadingDoes the Legislature Lack the Power to Revise the Redistricting Law?