Want Politicians to Prioritize the Greater Good over Partisanship? Change Election Rules, Speakers Say

Posted on Categories Election Law, Public, Speakers at MarquetteLeave a comment» on Want Politicians to Prioritize the Greater Good over Partisanship? Change Election Rules, Speakers Say

You want to do something about the partisan polarization that puts the United States Congress into frequent gridlock? Katherine Gehl and Austin Ramirez say there is a solution that has nothing to do with any specific policy or how people define themselves when it comes to partisanship: Change the way Congress members are elected.

“It turns out what really matters is the system, the rules of the game,” Gehl said during an “On the Issues with Mike Gousha” program posted on the Marquette Law School web site on April 8, 2021. The game she referred to is the way politicians get re-elected. Single-party primary elections motivate them to take highly partisan positions that play to small, but decisive blocks of voters within their party.

“Currently the system pushes – forces — the sides apart,” Gehl said. What’s best in the big picture doesn’t count the way that it counts to do what’s best for winning a party primary or keeping others from launching primary challenges.

“Our task is to make keeping the job the same as getting results for the country,” she told Gousha, Marquette Law School’s distinguished fellow in law and public policy. Continue reading “Want Politicians to Prioritize the Greater Good over Partisanship? Change Election Rules, Speakers Say”

Election Reform Efforts Are Needed in Wisconsin, GOP Party Chair Says

Posted on Categories Election Law, Political Processes & Rhetoric, Public, Speakers at MarquetteLeave a comment» on Election Reform Efforts Are Needed in Wisconsin, GOP Party Chair Says

The 2020 election is over, but the need for election reform continues, the chairman of the Wisconsin Republican Party, Andrew Hitt, said during an “On the Issues with Mike Gousha” program posted on Marquette Law School’s web site on Feb. 9, 2021.

So expect legislative action on that front and, given the likelihood of vetoes by Democratic Gov. Tony Evers, new lawsuits and efforts to get the Wisconsin Election Commission to take more action regarding election rules, Hitt said.

But, Reid Ribble, who represented an area including Green Bay as a Republican member of the US House of Representatives from 2011 to 2017, took a different approach to the subject, suggesting it would be “a huge confidence boost for everyone” if legislators and the governor came together on a bipartisan plan for election integrity. Continue reading “Election Reform Efforts Are Needed in Wisconsin, GOP Party Chair Says”

Gerrymandering Opponents Describe Fight for Non-partisan Political Boundaries

Posted on Categories Election Law, Political Processes & Rhetoric, Public, Speakers at MarquetteLeave a comment» on Gerrymandering Opponents Describe Fight for Non-partisan Political Boundaries

In 2011, Dale Schultz was a Republican state senator from Richland Center and he voted for a plan created by Republicans to draw new boundaries for legislative districts in Wisconsin that helped the party grow and solidify its control of the legislature.

It’s a long-standing practice in politics. In different times and places, both Democrats and Republicans have tailored district lines to favor their party. It’s called gerrymandering.

Schultz, who left the legislature in 2015, and a former state Senate colleague, Democrat Tim Cullen, who also left office in 2015, have come to call it an abuse of power. Continue reading “Gerrymandering Opponents Describe Fight for Non-partisan Political Boundaries”

Lessons Learned in April Will Lead to Smoother Voting This Fall, Election Administrators Say

Posted on Categories Election Law, Public, Speakers at MarquetteLeave a comment» on Lessons Learned in April Will Lead to Smoother Voting This Fall, Election Administrators Say

There were upsides to the tumultuous Wisconsin election in April. At that time, there was an unprecedented flood of absentee voting, with some significant missteps related to mail service. Many of the usual polling places were closed, leading to long lines at those that were available, amid extensive precautions due to the COVID-19 pandemic. A photo from one Milwaukee polling place of a voter holding a sign proclaiming the situation “ridiculous” circulated around the world.

So what was that upside? A lot was learned about what to do and what not to do, the challenges of running an election in today’s circumstances were clear to the public, and there is a good forecast for an election this fall that will be well run, with good options for voting and good reason to be confident the results will be reliable.

That was the picture painted Wednesday by three people involved in overseeing how the election, featuring a presidential choice, is shaping up. Wisconsin Elections Commission Administrator Meagan Wolfe, Milwaukee Election Commission Executive Director Claire Woodall-Vogg, and Brookfield City Clerk Kelly Michaels spoke with Mike Gousha, Marquette Law School’s distinguished fellow in law and public policy, during a virtual “On the Issues with Mike Gousha” program. Continue reading “Lessons Learned in April Will Lead to Smoother Voting This Fall, Election Administrators Say”

The Wisconsin Supreme Court Misinterprets Emergency Powers

Posted on Categories Constitutional Interpretation, Constitutional Law, Election Law, Health Care, Judges & Judicial Process, Public, Wisconsin Law & Legal System, Wisconsin Supreme CourtLeave a comment» on The Wisconsin Supreme Court Misinterprets Emergency Powers
A young woman during the coronavirus outbreak of 2020

Under Wisconsin Law, the governor possesses extremely broad power to issue any order that he or she deems necessary to protect lives and property during a state of emergency.  When responding to an outbreak of a communicable disease, the governor has the specific power to prohibit public gatherings in any place within the state and for any period of time while the emergency is ongoing.  The source of this authority is the power granted to the governor under the Emergency Management Act, which places a duty on the governor to issue orders coordinating the state’s response to a disaster, and the power granted to the Secretary of the Department of Health Services to issue orders forbidding public gatherings during an epidemic.  As the top executive branch official in the State of Wisconsin, Governor Evers has both the statutory authority to direct the state’s emergency response efforts and the constitutional authority to make full use of the power of the state’s administrative departments.  

On April 6, the Wisconsin Supreme Court — its members meeting under emergency procedures intended to protect their own health — issued an order that had the practical effect of requiring Wisconsin voters who had not already received an absentee ballot to visit a polling place on April 7 and vote in person if they wished to cast a ballot in the spring election.

The result of the Court’s ruling in Wisconsin Legislature v. Evers was to place Wisconsin voters in an untenable position. The ruling disenfranchised anyone who wished to shelter at home in order to avoid possible exposure to Covid-19, a deadly communicable disease, if that person lacked either a computer, internet access, a scanner for making a digital copy of their ID, or a witness to verify their absentee ballot.  All of these prerequisites were necessary before a Wisconsin voter could obtain and cast an absentee ballot whilst still sheltering in place. The majority opinion was clear: for anyone who fell into this category, the price of casting a ballot was risking exposure to Covid-19.

The majority opinion in Wisconsin Legislature v. Evers has nothing to do with defending the Rule of Law, and it is a mistake to characterize it in that fashion.  There is nothing in any law passed by the Wisconsin legislature that requires the result announced by the Court. Indeed, had the Wisconsin Supreme Court truly intended to uphold the longstanding statutory scheme relating to government powers in response to an outbreak of communicable disease, the Court would have arrived at a contrary result.

A.      Background

The State of Wisconsin, like the rest of the country, has been engaged in a struggle to contain the spread of a coronavirus known as Covid-19. On March 12, 2020, Governor Tony Evers issued Executive Order 72, declaring a public health emergency in Wisconsin.  This order was part of a series of executive actions taken by Governor Evers and other executive branch officials in order to address public health and safety concerns during the spread of this deadly communicable disease. On March 24, 2020, the Secretary-designee of the Wisconsin Department of Health Services, Andrea Palm, acting at the direction of Governor Evers, issued Emergency Order 12 (the “Safer-at-Home Order”).  That order directed all individuals in Wisconsin to shelter at home, unless engaged in essential activities, until April 24, 2020, or until such time as a superseding directive took effect.

Continue reading “The Wisconsin Supreme Court Misinterprets Emergency Powers”

National Voter Registration Day: Make Your Voice Heard

Posted on Categories Civil Rights, Election Law, Milwaukee, PublicLeave a comment» on National Voter Registration Day: Make Your Voice Heard

Today has National Voter Registration Day—a good time to remind everyone register to vote so that all eligible voters can make their voices heard on Election Day (which, by the way, is Tuesday, November 6). While Wisconsin allows same-day voter registration, save yourself the time and the hassle of doing it all on Election Day and register now.

You can register to vote online at My Vote up to 20 days before Election Day (para Mi Voto en español, haga clic aquí), by mail up to 20 days before Election Day, or in person at your municipal clerk’s office until the Friday before Election Day. I’ll explain how to register online at My Vote, but first let me explain who is eligible to register to vote in Wisconsin. Continue reading “National Voter Registration Day: Make Your Voice Heard”

More Doubts About the Court’s Resolution of the John Doe Investigation

Posted on Categories Constitutional Interpretation, Constitutional Law, Election Law, Public, U.S. Supreme Court, Wisconsin Supreme CourtLeave a comment» on More Doubts About the Court’s Resolution of the John Doe Investigation

Today, the United States Supreme Court summarily affirmed the decision of a Three Judge Panel of the U.S. District Court for the District of Columbia in  Independence Institute v. Federal Election Commission.  By affirming the panel in this case, the U.S. Supreme Court seriously undermined the legal rationale that the Wisconsin Supreme Court relied upon when it dismissed the John Doe investigation into possible illegal campaign coordination during the Governor Walker Recall Election.  In one sense, today’s action by the U.S. Supreme Court merely establishes the narrow rule that “electioneering activity,” which encompasses a variety of activity beyond express advocacy on behalf of a candidate for office, is subject to regulation without violating the U.S. Constitution.

However, the action of the U.S. Supreme Court is significant because it also necessarily rejects a converse proposition: that the scope of permissible government regulation of election activity is limited to conduct which constitutes “express advocacy.”  The Independence Institute case is relevant to the John Doe Investigation because both cases raise the legal question of whether the U.S. Constitution permits any regulation of election activity other than “express advocacy” or its functional equivalent.  “Express advocacy” is usually defined as a communication that expressly advocates for the election or defeat of a clearly identified candidate.

The Independence Institute is a nonprofit organization.  It challenged disclosure requirements contained in the McCain-Feingold Act which would have required it to disclose its donors if it spent more than $10,000 on “electioneering communications” in the 60 days before a general election (or the 30 days before a primary election).  The group argued that this statutory requirement was unconstitutional because it went beyond the regulation of express advocacy.  As described by Judge Wilkins in an earlier proceeding in the D.C. Circuit, the argument of the Independence Institute reduced to the argument that “the only speech that should be considered an electioneering communication, and therefore trigger the BCRA’s reporting and disclosure requirements, is speech that is ‘unambiguously related’ to a campaign.”  The group wanted the Court to rule that the disclosure requirement in the statute could only be enforced in instances involving express advocacy.

If this sounds familiar, it is because the legal argument advanced by the Independence Institute is parallel to the reasoning adopted by the Wisconsin Supreme Court in its opinion ending the John Doe Investigation (State ex rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85).  Continue reading “More Doubts About the Court’s Resolution of the John Doe Investigation”

On the Issues: “Politically Homeless” Activist Calls for Change in the System

Posted on Categories Election Law, Political Processes & Rhetoric, Public, Speakers at MarquetteLeave a comment» on On the Issues: “Politically Homeless” Activist Calls for Change in the System

Katherine Gehl says, “I like to say I’m politically homeless.” It was clear at an “On the Issues with Mike Gousha” program at Marquette Law School on Wednesday that she does not use that label because she is not involved. In fact, the opposite is true: She is deeply involved.

Her sense of “homelessness” comes from her frustration with what she calls “the political-industry complex.” The two major parties, Congress, the executive branch, Washington lobbyists, and the national media are all thriving, but they are not producing solutions to the nation’s problems, Gehl said. And while Washington thrives, problems go unsolved and people grow increasingly dissatisfied. She said the system and particularly the two major political parties do not have the incentives businesses have to respond constructively to competition. “Two parties equals zero results,” she said.

Gehl (pronounced Gayle) is a former Democrat who describes herself now as “a proud independent, a centrist, a pro-problem-solving, non-ideological citizen who wants to see government deliver on its promise to the citizens.” She adds, “That is not an ideology that fits with either of the parties.” Continue reading “On the Issues: “Politically Homeless” Activist Calls for Change in the System”

Electoral College – Keep or Toss?

Posted on Categories Constitutional Law, Election Law, Political Processes & Rhetoric, President & Executive Branch, Public2 Comments on Electoral College – Keep or Toss?

electoral-college-2016By Mathew O’Neill

During the Twilight craze, the country was split between Team Edward and Team Jacob.  The battle was over Bella Swan’s heart.  Edward, a 200-year old vampire, was devastatingly handsome, kind, chivalrous, and his skin sparkled in the sun.  Jacob, a teenage werewolf, was brash, muscular, impulsive and fiercely protective of his tribe and Bella.  Oh, and Edward murdered a few thousand people but felt badly about it, while Jacob only killed vampires but had a bad mullet.  I was decidedly Team Jacob.

After the 2016 election, the country is split about the Electoral College.  There are again two camps: Team Keep and Team Toss.  Before going into the merits of each, some brief background.

As of this writing, Donald Trump won 56% to 44% in the Electoral College (290 to 232), while Hillary Clinton leads in the popular vote count 62,523,844 to 61,201,031.  So, while Trump romped to an 11-point Electoral route, he actually got clobbered by 1,322,813 votes.  What gives?  I thought this was a democracy.

This anomaly is the work of the venerated Electoral College.  The College was created in Article II, Section 1 of the Constitution, which states in part:

The executive Power shall be vested in a President of the United States of America.  He shall hold his Office during the Term of four Years, and, together with the Vice President chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole number of Senators and representative to which the State may be entitled in Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

The 23rd Amendment granted at least three Electors to the District of Columbia, bringing to 538 the total number of current Electors: 435 Representatives, 100 Senators and the D.C. trio.

The Constitution does not direct how the states must “chuse” their Electors.  In colonial times, most states did not call for a popular election to select their Electors.  Instead, party bosses made those decisions.  Eventually the cigar-smoke cleared, and today all states and D.C. hold a general election for President and Vice President, and nearly every state (48 of 50) has chosen to award all of its Electors to the winner of that state’s popular votes.  Thus, because the margins in various states can differ (Clinton won California by 3.5 million votes; Trump won Florida by 20,000 votes), it is possible to win the Electoral College, and thus the keys to the White House and a cool plane, while at the same time lose the overall popular vote.

Which raises the question: is this acceptable? Continue reading “Electoral College – Keep or Toss?”

There Is Real Election Fraud (Just Not What You Think)

Posted on Categories Civil Rights, Election Law, Political Processes & Rhetoric, Public1 Comment on There Is Real Election Fraud (Just Not What You Think)

stamp_us_1977_3c_americanaI have been working on elections since 2000, when I helped organize a team to defend a potential recount of Wisconsin’s narrow victory for Al Gore (never happened; see Bush v. Gore).  Since 2004, I have trained thousands of attorneys to observe at polling places to ensure every eligible voter is allowed to cast a regular ballot.  That is, and should be, the only goal of our election laws: enfranchisement!

In 2005 I testified before Congress about Wisconsin’s voting laws, the lack of any actual voter fraud, and the many real administrative problems caused by running a national election in one day.  In subsequent years, I helped compile reports of Election Day issues, defended individuals accused of voting irregularities, and was part of the GAB committee to create formal rules for observers.

So, I have some background in election law.

To put it mildly, I was surprised to hear a candidate for President state: “Voter fraud is very, very common.”  Not just common, but VERY, VERY common.

The statement, if meant to suggest rampant fraudulent voting, is categorically false.  Fraudulent conduct by voters is exceedingly rare.  A comprehensive study published in 2014 confirmed 31 cases of in-person voter fraud from 2000 to 2014, out of more than a billion votes.  In stark numerical terms, that is one act of fraud for every 32 million votes.  When defending Wisconsin’s harsh Voter ID law, the State “could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past.”  Frank v. Walker.  In other words, voter fraud is very, very, very uncommon.

There is, however, an election fraud that has become common in the past decade: the suggestion that voting laws need to be tightened to combat voter fraud.  This is the BIG LIE. It has been used across the country to justify a stunning array of laws designed to make it harder to vote. Continue reading “There Is Real Election Fraud (Just Not What You Think)”

An Election Day Primer for Wisconsin Voters*

Posted on Categories Civil Rights, Election Law, Milwaukee, Public1 Comment on An Election Day Primer for Wisconsin Voters*

Voting_United_StatesTomorrow is Election Day. It’s important to vote, so make sure you know where and when you can cast your ballot. New for Wisconsin voters this year is a photo identification requirement. I break down the voting process below to demystify and clarify it.

The main thing, though, is to vote. Even if you don’t like your choices for president, there are down-ballot races, including a state-wide U.S. Senate race between Russ Feingold and Ron Johnson and any number of races for federal or state representatives and other local officials, for which your vote matters. Continue reading “An Election Day Primer for Wisconsin Voters*”

Elections, the Holocaust, and the Senate Debate: Glimpses of Three Law School Events

Posted on Categories Election Law, Political Processes & Rhetoric, Public, Speakers at Marquette1 Comment on Elections, the Holocaust, and the Senate Debate: Glimpses of Three Law School Events

Glimpses of three important events in recent days at Marquette Law School:

The Wisconsin Elections Commission is less than four months old and so far it has made only two major decisions, each supported by all six members. Will the new body, created to take over the election oversight role previously played by the state’s Government Accountability Board, be a steady and responsible force for conducting elections well and avoid partisan divisions?

During  an “On the Issues with Mike Gousha” program Wednesday (Oct. 26, 2016), two of the leaders of the commission conveyed a message of professionalism and commitment to doing the jobs well . They also expressed general confidence in the quality of election practices in Wisconsin.

But Mark Thomsen, chairman of the commission and a Milwaukee lawyers, and Don Millis, a commissioner who is a lawyer from the Madison area, outlined some of the difficult and controversial issues that they face this fall and beyond, such as handling of voter identification requirements  and early voting, and showed some differences between them that reflect their own partisanship. Continue reading “Elections, the Holocaust, and the Senate Debate: Glimpses of Three Law School Events”