Recount Follies Continue

As our Supreme Court recount sloshes on, there is absolutely no chance that counting of the ballots will change the result. Moving forward seems to be more about exciting the base, sustaining anger and raising money. I understand how hard it must be to let go, but we passed the point of tolerance long ago. Even if Ms. Kloppenburg somehow feels obligated to move forward, she should cut out the empty insinuations.

Of course, she may be contemplating asking a court to throw out thousands and thousands of votes in Waukesha County. I can't believe that she would have the temerity to do it or that it would have the slightest chance of success. And, if she were to win, the victory - both for her and the left in this state - would by pyhrric. If this is actually being contemplated, it is a spectacularly stupid idea. Let's hope that there are grown ups in the Kloppenburg camp.

Why is it such a bad idea? Why can't it succeed. Let's start with the latter. If the problem is bags that are not properly cinched, there are all sorts of ways to assure oneself that they were not tampered with including examination of the chain of custody and comparison of what is in those bags now with what was counted on election night. Beyond that throwing out bags of ballots in Waukesha because they are not completely cinched, raises a serious constitutional challenge. Note that this constitutional problem exists whether or not the Prosser campaign "could have" made similar objections in other counties. It is a denial of the rights of the voters in Waukesha County no matter what the Prosser campaign did or do not do.

Here's why - or at least one reason why. In her public comments, Joanne Kloppenburg has suggested that the ballot bags in Waukesha were unusual. They are not. Such bags existed in Milwaukee County but were not remarked upon until the last day. They undoubtedly exist throughout the state. If the Kloppenburg now suggests that the ballots in these bags be tossed in Waukesha - and only Waukesha - it would require counting votes in Waukesha in a materially different way than the way they were counted in other counties.

This presents an equal protection problem pursuant to the United States Supreme Court's teaching in ... Bush v. Gore.

Looks like that case may have had legs after all.

Why is it a bad idea? Let's suspend disbelief and imagine that the Court of Appeals in Dane County would buy such a challenge - something that I don't regard as likely. Let's further assume that, with Justice Prosser recused, the "liberal" wing of the state Supreme Court would buy it and that the Court would split 3-3 allowing the Court of Appeals decision to stand. (I regard that as even more unlikely.) Let's further assume that the United States Supreme Court allows the theft of an election to stand by denying cert. (This is also unlikely.)

Whatever momentum the left has in Wisconsin would be gone. The anger on the right would make Madison's recent Days of Rage look like a picnic. No Democrat would win a recall and Obama will be an immediate underdog in Wisconsin. You can't toss out legitmately cast votes and not pay a huge price.