When Did Wisconsin’s Vote Really Ever Matter?

Posted on Categories Election Law, Political Processes & Rhetoric, Public, Wisconsin Law & Legal SystemLeave a comment» on When Did Wisconsin’s Vote Really Ever Matter?

Both major party presidential candidates in 2012 seem committed to spending time and money campaigning in Wisconsin, and a few pundits have even speculated that the upcoming election might be decided by the votes of the Badger State.

Local enthusiasm aside, how likely is it that Wisconsin’s electoral votes could actually decide the presidential election? Unfortunately, if history is any guide, not very likely.

Since their state’s admission to the United States on May 29, 1848, Wisconsinites have voted in 41 presidential elections, and the state has supported the winning candidate 32 times.

In ten consecutive elections from 1948 until 1984, the Badger state sided with the winning candidate, and had it not been for the surprising decision to support Dewey over FDR in 1948—after voting for Roosevelt by large margins in the three previous elections—the streak would have been 15 in a row.

However, in only one election—that of 1876—did Wisconsin’s votes actually matter, at least in the sense that in all the other elections, had Wisconsin gone with the losing candidate, the result would still have been the same. Continue reading “When Did Wisconsin’s Vote Really Ever Matter?”

New Poll: Republican Senate Race Changes as Presidential Race Stays Steady

Posted on Categories Election Law, Political Processes & Rhetoric, PublicLeave a comment» on New Poll: Republican Senate Race Changes as Presidential Race Stays Steady

With just over a month to go to the Aug. 14 primary election that will pick a Republican candidate for US Senate, the four-way race is changing shape, according to results released Wednesday by the Marquette Law School Poll. Support for Madison businessman Eric Hovde is rising while support for former Congressman Mark Neumann and Assembly Speaker Jeff Fitzgerald is declining, the poll results show. Former Governor Tommy Thompson’s support has changed little and he remains in the lead. But with 25% of likely voters in the primary saying they are undecided, the outcome of the race is hard to foresee.

The poll found Thompson supported by 35% of likely primary voters, compared to 34% a month ago, and Hovde supported by 23%, up from 14% a month ago. Neumann was at 10% (down from 16%) and Fitzgerald at 6% (down from 10%).

In match-ups of each of the four Republican candidates against the Democratic candidate in the November final election, Congresswoman Tammy Baldwin, the current outcomes were within the margin of error, with Thompson ahead of Baldwin and Baldwin leading Hovde, Neumann, and Fitzgerald.

The poll also found little change in the presidential race in Wisconsin, with Democratic President Barack Obama ahead of Republican challenger Mitt Romney, 51% to 43%.

In the aftermath of the US Supreme Court decision on the federal health insurance law, there was little overall change in Wisconsinites’ opinions of the law and in the overall numbers for how people rated the Supreme Court. But there was a notable decrease in favorable views of the Court among Republicans and a notable increase among Democrats.

For more information and full results of the poll, click here.


Money and the Recall

Posted on Categories Election Law, Political Processes & Rhetoric, Public, Wisconsin Law & Legal System2 Comments on Money and the Recall

Paul Secunda, as a labor law professor, weighs in on the aftermath of the recall. He makes some good points. But as (I think) one of two people in Wisconsin who teach Election Law (Mike Wittenwyler, an adjunct at UW, is the other), I would like to revise and extend his remarks.

Paul complains of the “8 to 1” spending advantage said to have been enjoyed by Scott Walker and suggests that this somehow can be attributed to the the results of the Supreme Court’s decision in Citizens United v. FEC. This advantage, while overstated, is the result of a law. But that law has nothing to do with Citizens United.

First, a caveat on the “8 to 1” figure.

As my colleague, Tom Kamenick, pointed out (and not at my direction, I was off in DC), this metric doesn’t reflect the situation on the ground.  Continue reading “Money and the Recall”

Tearing Down Fences

Posted on Categories Election Law, Legal History, Political Processes & Rhetoric, Public, Wisconsin Law & Legal System2 Comments on Tearing Down Fences

G.K. Chesterton, the English essayist and Catholic thinker, said the following:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.”

To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”

This paradox rests on the most elementary common sense. The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable. It is extremely probable that we have overlooked some whole aspect of the question, if something set up by human beings like ourselves seems to be entirely meaningless and mysterious. There are reformers who get over this difficulty by assuming that all their fathers were fools; but if that be so, we can only say that folly appears to be a hereditary disease. But the truth is that nobody has any business to destroy a social institution until he has really seen it as an historical institution. If he knows how it arose, and what purposes it was supposed to serve, he may really be able to say that they were bad purposes, or that they have since become bad purposes, or that they are purposes which are no longer served. But if he simply stares at the thing as a senseless monstrosity that has somehow sprung up in his path, it is he and not the traditionalist who is suffering from an illusion.

G.K. Chesterton, “The Drift From Domesticity,” in THE THING (1929).

It is long past time to stop tearing down fences in Wisconsin. Continue reading “Tearing Down Fences”

The Use and Misuse of History

Posted on Categories Constitutional Interpretation, Election Law, Legal History, Political Processes & Rhetoric, Public, Wisconsin Law & Legal System15 Comments on 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 reading “The Use and Misuse of History”

Signing a Recall Petition Does Not Require Judicial Recusal

Posted on Categories Constitutional Law, Election Law, First Amendment, Judges & Judicial Process, Legal Ethics, Political Processes & Rhetoric, Public, Wisconsin Court System, Wisconsin Law & Legal System14 Comments on 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 reading “Signing a Recall Petition Does Not Require Judicial Recusal”

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

Posted on Categories Civil Rights, Constitutional Interpretation, Election Law, Federal Civil Litigation, Public, Wisconsin Supreme Court3 Comments on 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 reading “Does the Legislature Lack the Power to Revise the Redistricting Law?”

Mark Block: Did a Conspiracy Bring Down Herman Cain’s Presidential Bid?

Posted on Categories Election Law, Marquette Law School, Political Processes & Rhetoric, Public, Speakers at Marquette2 Comments on Mark Block: Did a Conspiracy Bring Down Herman Cain’s Presidential Bid?

Maybe it was a conspiracy among powerful figures in Washington that did in Herman Cain’s presidential campaign, his campaign manager suggested Thursday at Marquette University Law School.

Mark Block, the unconventional political operative who became a celebrity himself during Cain’s once-hot run for the Republican nomination, said he fully believed from the earliest days of the campaign that Cain was going to be the next president of the United States.

But after more than a month as a front runner last fall, Cain saw the wheels come off his bid with a series of news stories about alleged inappropriate sexual conduct by Cain and Cain’s bungling of some questions, especially one about Libya asked during a Milwaukee Journal Sentinel editorial board meeting.

When Mike Gousha, the Law School’s distinguished fellow in law and public policy, asked Block what happened, Block answered, “I think what happened, this is a little bit of the conspiracy theory in me, he (Cain) scared the hell out of a lot of people in Washington, D.C., and it was time to take him down, take him out.”

Asked by Gousha if he knew who might be involved, Block answered, “Don’t know that, but I can tell you when I find that out, it’ll be a best selling book.”

Asked after the one-hour “On the Issues” session if he could amplify on the subject and whether a conspiracy might have come from the right or the left, Block said he had no evidence and offered no answers.

If not for the events in October, Block said, he was convinced Cain would be well on his way to the Republican nomination now.

Block himself caused a sensation with a campaign ad posted on the Internet last fall in which, after saying how much he believed in Cain, Block took a deep puff on a cigarette and, as the smoke was exhaled, the image dissolved to a photo of Cain. Cain aides estimate the ad has been viewed more than 20 million times. Block said, “It cost us $4 to film that.”

Block provided an introductory video for the Eckstein Hall session which included a taped message from Cain thanking Marquette and Gousha for giving Block a chance to ”share our story.” The video focused mostly on the cigarette ad. The session, including the video, can be viewed by clicking here.

Block, a Wisconsin native, was a long-time and sometimes controversial political operative in Wisconsin. One of the people in audience Thursday was Walt Kelly, who lost a race for Wisconsin Supreme Court in 1997. Block managed the campaign of Kelly’s opponent, Jon Wilcox, and Block was subsequently banned from Wisconsin politics for three years as part of a settlement of charges that he colluded with an independent organization in violation of campaign laws. From the audience, Kelly asked Block whether he was still under investigation for possible collusion with other organizations during the Cain campaign. “Not to my knowledge, Walt,” Block answered.

Asked by Gousha about the interview at the Journal Sentinel in which Cain struggled to come up with an answer when asked what he thought of how President Obama handled Libya, Block said, “In retrospect, what I should have done is cancel that interview.” Cain was exhausted that morning and should have taken a break, Block said.

Block said it is likely the Republican presidential candidate won’t be picked until the national convention this summer. He said candidate Newt Gingrich will pick up a lot of delegates in the Super Tuesday primaries on March 6. Cain has endorsed Gingrich.

Block said Cain would not agree to be the vice presidential candidate and would not accept any Cabinet seat in a Republican administration except possibly secretary of defense. He said Cain remains “extremely upbeat” personally and is working hard to promote the defeat of President Barack Obama this year and to see the “9-9-9” tax plan become law. “He’s on a mission,” Block said.

Block continues to be a big part of that mission – he now has the title of chief of strategic planning and development for Cain’s Solutions Revolution, one of several organizations that Cain has created.

The Court of Appeals Speaks in the Recall Case

Posted on Categories Civil Procedure, Election Law, Judges & Judicial Process, Public, Wisconsin Law & Legal System10 Comments on The Court of Appeals Speaks in the Recall Case

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. Continue reading “The Court of Appeals Speaks in the Recall Case”

Tommy Thompson to Critics: Get Out of My Way

Posted on Categories Election Law, Marquette Law School, Public, Speakers at Marquette2 Comments on Tommy Thompson to Critics: Get Out of My Way

It was near the end of Mike Gousha’s interview with US Senate candidate Tommy Thompson. Alluding to critics, many from the right, Gousha asked, “So when they say –and they do say — Tommy Thompson is part of the problem in Washington, not part of the solution, you say?”

“Get out of my way,” Thompson answered quickly.

If you think that at 70, the political fire inside Thompson has diminished, you should have seen him during the “On the Issues” session with Gousha, the Law School’s distinguished fellow in law and public policy at Eckstein Hall on Thursday. (In fact, you can, by clicking here for the video.)

The man elected governor of Wisconsin four times before serving four years as US Secretary of Health and Human Services was every bit the forceful, self-confident, optimistic, almost swaggering figure before about 200 people that Wisconsinites knew so well in the 1980s and 1990s.

When Gousha said other people running for the open US Senate seat wanted the job as much as Thompson did, Thompson said, “I don’t think so.” Continue reading “Tommy Thompson to Critics: Get Out of My Way”

Prosecutorial Discretion in the John Doe Investigation

Posted on Categories Criminal Law & Process, Election Law, Public, Wisconsin Criminal Law & Process2 Comments on Prosecutorial Discretion in the John Doe Investigation

Over at the Shark and Shepherd Blog, Rick Esenberg has put up a post questioning whether the recently filed criminal complaint in the ongoing John Doe investigation of the County Executive’s Office during Scott Walker’s tenure justifies the time and expense spent thus far on the investigation. I posted several comments in response to Rick’s post, and it seems worthwhile to repeat those same points on the Marquette Law School Faculty Blog.

First of all, it is unlikely that the John Doe investigation will remain focused solely on the existence of campaign activity during employee working hours. According to press reports, the investigation is proceeding in the direction of investigating possible destruction of evidence and obstruction of justice. As I tell the students in my Corporate Criminal Liability class, a cover up will cause a defendant more trouble than the underlying crime. Continue reading “Prosecutorial Discretion in the John Doe Investigation”

The Two Political Half-States of Wisconsin

Posted on Categories Election Law, Marquette Law School, Political Processes & Rhetoric, Public3 Comments on The Two Political Half-States of Wisconsin

Gov. Scott Walker’s job performance is drawing strong disapproval—in the city of Milwaukee. Gov. Scott Walker’s job performance is drawing strong approval—in the rest of the Milwaukee media market.

A big thumbs up for Walker across most of the state of Wisconsin. A big thumbs down in Madison.

The two half-states of Wisconsin—one with clear Democratic majorities, one with clear Republican majorities—can be seen in the results of the Marquette Law School Poll released this week. Political contests in either of the half-states alone would be bring few surprises and little drama because they would be one-sided. But combine the two halves into the one Wisconsin we actually have, and you get a polarized, evenly split state that has become a center of passionate partisanship, attracting high levels of national attention.

You can see the two half-Wisconsins in the demographic breakdowns of many of the questions in the new Law School poll. (The results are all on the Law School Poll’s webpage. To go to them, click on “Results & Data” and then on the line referring to “crosstabs.”) Continue reading “The Two Political Half-States of Wisconsin”