Wednesday, April 20, 2011

Recount Follies

I'm not going to be too hard on Joanne Kloppenburg for requesting a recount. It's hard to give up something that you have wanted badly, worked hard for and came so close to having - even thinking, albeit rashly and incorrectly, that you had, in fact obtained.

Letting go required facing a very unpleasant reality. It appears she was not up to that. The result will be an expensive tilt at a windmill for the taxpayers (and her donors) and her choice suggests that she may not have the judgment required for the Court. Her references to "suspect" results and the need to restore public integrity were disappointing and her suggestion that there was some need for hand recounts that GAB would request was bizarre. But, then again, we're all human.

I'm not upset about it. It's a colossal waste of money but, in the grand scheme of things, just one more example of that. In fact, recounting Waukesha is probably worth it to shut up the tin foil crowd and the irresponsible politicos among us.

I have less sympathy for those who put her up to it because this is, ultimately, a political act. Democrats are concerned that they will be unable to sustain the anger through the recalls. They believe - probably incorrectly - that this is a way to do it going. Keep the Supreme Court election that proved so useful going and maybe kick up some dust over nothing at all. I have yet to talk to anyone who knows much about these things who thinks that a recount is remotely likely to change the outcome. The reason to ask for one is to not to alter or even confirm the result, but to sustain momentum.

I'm not sure that it works. If it turns out to be the nothing burger than I suspect it will be, it just underscores what is already a bitter defeat. It soaks up money that could presumably have been directed to recalls. It will put the lie - finally - to the Nickolaus conspiracy theories.

On the other hand, I am not a political operative and I assume that some fairly sharp ones on the other side decided that this was worth doing.

37 comments:

David said...

My gut also tells me that it will backfire, but that depends in part on how they conduct it.

clemster said...

I think you are going too easy on her. The idea that this inexperienced lawyer could replace Judge Prosser was only partially realized by the gigantic union contributions. Meanwhile, she trashed the Judge's reputation. What accountability will she face from that.

Anonymous said...

Although you're right that simply saying the "serenity" prayer is the best option for one's mental health, it is galling. The left is just using taxpayer money so that, in the interim before the focus turns to recalls, they can keep their base engaged and give the media an opportunity to keep the "tainted election" on the front page. If the margin had been outside .05%, they wouldn't have wasted their own money on this. Kloppenburg is just their pathetic, useful idiot, I'm afraid.

John Foust said...

What's your definition of "political operative"?

Anonymous said...

Aren't you going to tell the nice people that the race is so close, state statute classifies the recount as sufficiently worthy so as to cost the candidate nothing where bigger spreads lead to cost for the candidates.

In all the gnashing of teeth, when will one of you folks say, well, yeah, this is pretty much what the recount statute contemplated?

Anonymous said...

No one is disputing that Kloppenburg has the statutory right to ask for the recount and have it paid for by state taxpayers. It's whether her exercise of that right is wise or constructive that is the issue.

Anonymous said...

Touche, M. Foust.

Anonymous said...

The young generation of politicians rising up to deal with the problems of our country are impressive. While we have a long way to go, I believe the nation could only win with a Presidential campaign of Palin vs. Obama.

George Mitchell said...

Anon 10:42 did the same post at Boots and Sabers under the email address
ofr@ofranon.com.

This says two things:

1. I am spending too much time reading blog comments.

2. "Anonymous" comments remain, in my mind, a scourge.

John Foust said...

Yeah, but are you actually George Mitchell?

Anonymous said...

Hence we must conclude "George Mitchell" is another John Doe "scourge" afflicting the intertubes. And he is correct in his admission to spending too much time on blogs.

Anonymous said...

Check out this chart that summarizes statewide election vote recounts. It is from politico, but I read about it on Lakeshore Laments blog:

http://www.politico.com/static/PPM191_recount.html

I don't have another way to post, and this is the first comment I have posted on Shark and Shepherd. So I am not the same Anonymous.

Dad29 said...

Well, Rick...

A month or so ago it was clear that Sumi's kangaroo-ing was designed to delay a decision. That delay would result in SCOWI review of the case after Prosser was out, i.e., after August 1st.

Of course, Kloppenburg had to win.

Oh, well.

The backup plan is now in play. Kloppy requests a recount, which will take a long time. As of 8/1, SCOWI becomes a 3-3 tie (at least in theory, but Abrahamson has counted her chickens very carefully.)

Ergo, a Madison Appeals court ruling will stand.

Kloppy's just roadkill here. It's the vacancy on SCOWI that counts.

illusory tenant said...

What Madison appeals court ruling?

illusory tenant said...

shut up the tin foil crowd

Hear that Dad?

Dad29 said...

What Madison appeals court ruling?

We note that SCOWI has not accepted any of the AG's or Administration's petitions on the matter at hand yet.

You expect that SCOWI will take the case directly, illyt? On what basis?

illusory tenant said...

We note that SCOWI has not accepted any of the AG's or Administration's petitions on the matter at hand yet.

Right, but there is no appeals court "ruling." There was the DoJ's District IV appeal, which the latter kicked upstairs, and the DoJ's ability to effectively represent its plaintiff secretary of state appears to be irretrievably broken. So that thing is dead in the water (maybe Cathy Stepp could fish it out). And there is Mike Huebsch's petition for a supervisory writ, also filed by the DoJ, a terribly unconvincing document, I'm sorry to tell you.

You expect that SCOWI will take the case directly, illyt? On what basis?

I don't expect them to, unless they want to rule the Open Meetings Law unconstitutional, at least insofar as it applies to the express prohibition on the sufficiency of the Fitzes 1hr and 57m meeting notice (why wasn't Jeff Fitz in his office, by the way, when the witching hour was imminent? That's probably the biggest FUBAR in this entire escapade). But I would like to see the court declare the OML unconstitutional, for sheer entertainment at least. Imagine all of those restraintful, conservative jurisprudes "unmooring" themselves from the plain text and relying instead on Cromwell-era common law. What fun.

By the way, Daddy-O, you and your wing-right pals really need to stop criticizing Judge Sumi with your goofball ad hominem japes, as they embarrass nobody but you all (but of course you can keep it up for the pure entertainment value as well). What it tells people who have read the law (beyond Prof. Rick's "publication that is sent to schoolchildren," that is) that you've got nothing *but* ad hominem fallacies. I've yet to see a convincing substantive criticism of Sumi's dispositions and I think it's highly likely the Supreme Court can't come up with one either.

04/24/11

illusory tenant said...

By the way, Dad, have you had a gander at Judge Sumi's record on appeal? Here, let me show you it.

04/24/11

This DJ said...

Just so everyone's on the same page. There isn't a vacancy on the court.

You don't VACATE your position when running for reelection.

I'm not a constitutional scholar, I don't even play one on tv, however the American System is not that complicated folks.

Dad29 said...

I've yet to see a convincing substantive criticism of Sumi's dispositions and I think it's highly likely the Supreme Court can't come up with one either.

I have, from Prof. Rick, who actually practiced law for quite some time--successfully.

As to Sumi: she gets the respect that she earns. No one has put forth a convincing argument that declaring a law un-Constitutional BEFORE IT IS LAW is anything other than kangaroo-ism, plain.

DJ, Prosser's seat goes vacant 8/1 unless a winner is declared before then. Dates are important, DJ.

Anonymous said...

"No one has put forth a convincing argument that declaring a law un-Constitutional BEFORE IT IS LAW is anything other than kangaroo-ism, plain."

Then, Dad29, you haven't been closely paying attention!

illusory tenant said...

I have, from Prof. Rick ...

Well, good for you guys. You might find it interesting that Prof. Rick's watershed, controlling precedent, Goodland v. Zimmerman, barely makes an appearance in the Huebsch petition for a supervisory writ. Instead, the petition focuses primarily on La Follette v. Stitt.

You want to know why? Because the facts and law at issue in Ozanne v. Fitzgerald precisely describe that situation which Stitt repeatedly insists it does not cover. Go read Stitt (it's online), and see how quickly you lose count of the "excepts" and the "unlesses." In other words, Stitt is unavailing, and JBVH knows it, as is Lynch v. Conta and as is MJS v. Wis. DoA, but we (and District IV) knew that already.

Grandes problemos, Daddy-O. You'll see (maybe). By the way this business is all constitutional law and statutory construction, which you don't need 20 years experience taking depositions to evaluate. And there's plenty of other pretty sharp cookies among the Marquette law faculty who haven't practiced a whole hell of a lot of law.

No one has put forth a convincing argument that declaring a law un-Constitutional BEFORE IT IS LAW is anything other than kangaroo-ism, plain.

Except Judge Sumi hasn't done that. What do you think the briefing schedule is for? Besides, the convincing argument is sitting up right there among the black letter constitutional and statutory provisions. Have a look-see, Pops.

This DJ said...

Well Daddio,

Dates are important, however what is today's date?

April 24th, 2011. It becomes vacant on August 1, 2011 if there is not a certified winner.

I'm also not a mathematician but that's 98 days.

If they want to throw out Sumi's ruling there is ample time for that action if the court has the drive for it.

This recount has not a damn thing to do with that, and constructing lame straw men doesn't serve any purpose either because here's a hint. No one with half a gourd believes them.

Dad29 said...

No one with half a gourd believes them

Correction: no one with half a gourd WANTS to believe them.

But then, no one with half a gourd would have believed someone could issue a TRO against a law which is not actually a law, either.

illusory tenant said...

Wis. Stat. § Dad(29): [N]o one with half a gourd would have believed someone could issue a TRO against a law which is not actually a law, either.

Wis. Stat. § 19.97(2): [T]he district attorney may commence an action ... to obtain such other legal or equitable relief, including but not limited to mandamus, injunction or declaratory judgment ...

Why, it's unthinkable!

You're funny Dad.

04/24/11

This DJ said...

Big Daddy Kane

I'm pretty sure many people thought she could issue a TRO, since you know, she did.

Cue the statement about the Peoples Republic of Madistan, and how there are no laws, yadda yadda yadda. IT'S LAWLESS THERE!!! JUST LAWLESS!!!

John Foust said...

I would guess Da Shark hasn't chimed in yet because he's still working on his definition of "political operative".

Dad29 said...

...any judgment declaring such action void shall not be entered unless the court finds, under the facts of the particular case, that the public interest in the enforcement of this subchapter outweighs any public interest which there may be in sustaining the validity of the action taken

19.93 rules.

George said...

-------Cue the statement about the Peoples Republic of Madistan, and how there are no laws, yadda yadda yadda.----

What do we need a legislature for if a County Mountie (oops judge) can direct that they may not publish a law? Looks like we could save a lot of money to just have a robed government.

I think you elitist lawyers overvalue yourselves.

Dad29 said...

And then there's 19.87(2)

But black-letter dispositives don't apply because.....well......because it's a Living Document.

gnarlytrombone said...

But black-letter dispositives

Legalspeak becomes you about as well Trump's skull merkin.

John Foust said...

Robed government... Watch out! The Illinois license plates are bringing the FOUR BLACK-ROBED MASTERS!

illusory tenant said...

Dad sez: And then there's 19.87(2).

Been there weeks ago. Try to keep up willya.

04/26

Dad29 said...

No, Illy.

I'll stick with the black-letter stuff that you do your best to ignore.

illusory tenant said...

Whatevs Pops. You're hopeless.

John Foust said...

Careful! When cornered, Wolverine Dad29 will always resort to quoting chapter and verse of his Natural Law.

illusory tenant said...

Don't know why I even bothered.