The Original Intent of the Recall Power

Some opponents of the effort to recall Governor Scott Walker have claimed that the recall provisions of the Wisconsin State Constitution are intended solely to permit the recall of elected officials when they have engaged in criminal or grossly unethical conduct. The latest example of this claim can be seen in the column by Jonathan Rupperecht that appeared in the November 3rd edition of the Milwaukee Journal Sentinel. In it, Mr. Rupperecht says, “Recalls are designed as special interventions when elected officials become guilty of serious malfeasance in office or when they engage in illegal actions or indulge in offensively immoral behavior.”

This statement is objectively false. The recall provisions contained in the Wisconsin State Constitution were never intended to be limited in such a fashion. The original design of the right of recall is, in fact, intended to permit voters to recall elected officials for virtually any reason so long as the procedural mechanisms of the State Constitution are followed.

For present purposes, I take no position on whether a recall of Governor Walker based upon his actions since taking office is a good idea. However, Governor Walker’s supporters contend that the original “design” of the recall provisions is limited to circumstances where there is evidence of criminal conduct or a serious ethical violation. In making such claims, Walker’s supporters are attempting to cast doubt on the underlying legitimacy of the proposed recall drive, rather than arguing that the recall is unwise. Assuming that a recall petition against Governor Walker is filed on November 15, it is therefore worthwhile to ask whether the use of the recall power in this instance would be consistent with the original design of Article XIII of the Wisconsin Constitution. The answer to that question is “yes.”

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Marquette Law School Poll

Marquette University Law School will undertake a substantial statewide polling initiative during 2012. This will be the most comprehensive polling enterprise in Wisconsin’s history, following public opinion through a number of polls over the year. The goal of the Marquette Law School Poll is to provide a balanced and detailed understanding of how voters on all sides view and respond to the issues of the 2012 campaigns. The initiative will build upon the work at Marquette Law School of Mike Gousha, distinguished fellow in law and public policy since 2008, and Alan Borsuk, senior fellow in law and public policy since 2009. Leading the effort will be Charles Franklin, a University of Wisconsin–Madison professor of political science, who will be with us throughout 2012 as a visiting professor of law and public policy. Franklin is a national expert on statistical methods, political polling, elections, and public opinion. With the national attention that Wisconsin will receive in 2012 and Marquette Law School’s growing reputation as a premier neutral site for debate and civil discourse on matters affecting the region and points beyond—and with Franklin, Gousha, and Borsuk, together with interested faculty at the Law School and the larger university—there can be little doubt that the time, place, and people are right for the Marquette Law School Poll. The announcement and the underlying reasoning are expanded upon in this press release and in this detailed project description.

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Not a Pretty Picture: Potential Challenges to Wisconsin’s Voter ID Law

In August 2011, The League of Women Voters of Wisconsin publicly announced its intention to file a lawsuit challenging the constitutionality of the new Wisconsin Voter ID law. While no complaint has been filed as of date, and it is undoubtedly foolish predict the likelihood of success of any lawsuit without first reading the complaint, one would expect the promised lawsuit to face a hostile reception in the courts. This statement does not mean that the Wisconsin Voter ID law reflects good public policy. Many people believe that it does not. Nor does the above statement mean that the existing judicial precedent focusing on state voter ID laws does a particularly credible job at analyzing the constitutional issues raised by this type of legislation. Many will argue that the existing precedent is flawed. However, the current legal landscape is what it is, and the fact remains that any future legal challenge by the League of Women Voters seems unlikely to succeed.

A. The Right to Vote Under the U.S. Constitution

The text of the United States Constitution does not expressly guarantee the right to vote. Nonetheless, in Harper v. Virginia State Board of Elections the United States Supreme Court ruled that the right to vote in state elections is a fundamental right protected by the Equal Protection clause of the United States Constitution. A large body of precedent has reaffirmed the primacy of the right to vote under our constitutional structure, holding that the ability to vote cannot be arbitrarily abridged or denied to groups of otherwise legitimate voters.

Notwithstanding the recognition that the right to vote is fundamental, the United States Supreme Court has declined to apply strict scrutiny to all election regulations which place some minor, even-handed burden on the ability to cast a ballot.

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