Tuesday, September 27, 2011

Why WRTL cannot be charged.

The press is reporting that the ongoing John Doe investigation may be looking at issues arising from the provision of barbecue to voters by a liberal advocacy organization and the provision of gift cards to persons involved in "get out the vote" issues by Wisconsin Right to Life.

Tom Foley offers his opinion that the good people at Wisconsin Right to Life "must" be prosecuted by the district attorney. He's wrong.

I posted briefly on the legal issues involved shortly after the matter first became public. Tom seems to think its odd that I quoted only part of statutory language paraphrasing what comes before. Not odd at all. It happens every day and the reason I did it was because I was only concerned with the quoted language. There is no question that WRTL offered or promised or gave a "thing of value." In fact, my understanding was that they had already given the gift cards which is why I said the statute applied to "providing" a thing of value. In my understanding, that is what was done. Of course, the statute could also apply to an "offer" or "promise" but that wasn't the issue.

What I was concerned with is whether WRTL could be said to have given out these gift cards (or, if you prefer, offered the gift cards) to an elector or any other person as an inducement to get an elector to vote or refrain from voting.

The problem that I see with application of the statute to WRTL is that the gift cards were offered or given not as an inducement to vote but as an inducement for people to get others to apply for absentee ballots. Even if we can characterize the latter as trying to get people to vote, this is a huge distinction. Here's why.

Tom wants to read the statute to say that it is unlawful to offer a thing of value to a person in order to induce that person to persuade another to vote. This is not what the law says. In fact, if we were read the statute in the way that Mr. Foley wants, it would apply to any compensated "get out the vote" effort. If a political party or a candidate or even the League of Women Voters pays people to encourage or facilitate voting, they will have violated the statute. Not only is that a nonsensical reading of the statute (the law can be an ass but it usually isn't), it is a reading that would place it in dire constitutional jeopardy. The freedom of association involves, I think, the right to organize to get out the vote including paying the organizers.

As I suggested in the post that Tom keeps referring (but never responding to), I argued that the inducement - whether given directly to an elector or another person -must function as an inducement to the elector, i.e., whatever is provided to the elector or a third party must be a quid pro quo for the elector's decision to cast (or to refrain from casting) a vote.

Thus it would be unlawful for the Republican Party to give my son $ 100 in order to induce me to vote. It would not be unlawful for it to hire my son to register voters, get absentee ballot applications and otherwise participate in what politicians refer to as "the ground game" - even if he winds up getting me to submit an absentee ballot request.

There could, I suppose, be additional facts about the arrangement that make the law applicable and, as I blogged when this story broke, I would have advised that the program be structured a bit differently in order to err on the side of caution.

13 comments:

Anonymous said...

In contrast to the WRTL's activities, what seems to clearly be illegal are things like "BBQ for votes," "Kringle for votes," or "Smokes for votes," all of which the Dems have engaged over the past few election cycles.

Anonymous said...

I give you credit for wallowing in that swamp. Those people gave up rational thought for partisan posturing years ago.

Foley, Foust et all can't see a rather clear distinction.

John Foust said...

Anony, can you please point out where I've made spoken on this particular topic? I don't think I have.

Anonymous said...

"It would not be unlawful for it to hire my son to register voters, get absentee ballot applications and otherwise participate in what politicians refer to as "the ground game"

Correct, but we DO NOT know whether a gift card given by A to B to "encourage" or "entice" C to vote in an election is a violation of the statute given the various interpretations, as YOU even admitted in the post. That is EXACTLY the problem here; therefore, arrest the offenders so the court can decide on the matter. So quit pretending as if it is so cut and dried, professor.

George Mitchell said...

I don't see Rick as "pretending" anything is "cut and dried." I see him questioning how WRTL activity in this instances differs from voter registration and GOTV efforts that occur all the time and for which people are often compensated.

Anonymous said...

George--When the professor declares someone else's position as "wrong", it is clear where he stands! Thus, it is "cut and dried" from his perspective.


"I see him questioning how WRTL activity in this instances differs from voter registration and GOTV efforts that occur all the time and for which people are often compensated."

But this behavior does NOT necessarily mean it is legal in the eyes of the justice system as of right now. There is ambiguity as to whether these actions are indeed under the purvey of the law. Hence, the necessity for a judgement to be made. Just because something has been allowed to occur does NOT mean it is justifiable.

The Humanitarian Libertarian said...

This is the reason that they are conducting an investigation. With that said, I don't see anything different in what WRTL did that other get out the vote efforts have done in paying workers to register voters.

I also agree that WRTL might be ambiguous, but the progressive organization, with the BBQs and smokes and such are blatantly guilty of buying votes!

Anonymous said...

Humanitarian--It is NOT about how blatant is the conduct, but whether the conduct meets the standard.
And, again, just because past behavior has been "accepted" does NOT mean it is legal. There needs to be clarity on this issue.

Besides, the LARGER issue is...WHY are even incentives being used to entice people to get people to vote? Where is the outrage over this action?

George Mitchell said...

anon 6:55

"There is ambiguity as to whether these actions are indeed under the purvey of the law."

To what do "these actions" refer? Paying people who do voter registration and GOTV?

George Mitchell said...

anon 11:35

"WHY are even incentives being used to entice people to get people to vote? Where is the outrage over this action?"

What is outrageous about political parties and other interested groups conducting election-related activities with paid staff?

Anonymous said...

George--Let me clarify. Of course hired campaign staffers ought to convince the electorate to vote for their candidate. The workers are paid a salary to their job. No problem here at all! My outrage is when candidates provide incentives--like gift cards or vouchers--to NON-PAID WORKERS. i.e. volunteers, to get the vote out. That is the DISTINCTION a court ought to address because of the ambiguity.

If one volunteers their services to campaign, I believe it is expected that one is donating their time and effort without the expectation of receiving something of tangible value to "lure" voters. Regardless of political ideology, I think people are in favor of trying to prevent the appearance of impropriety, given the very nature of BOTH parties in today's volatile political climate to skirt the rules just to win.

Again, to clarify, why should there be incentives (like gift cards or vouchers) given by candidates to entice people to get people to vote?

George Mitchell said...

anon 3:02

I will be surprised if a court makes the kind of distinction you suggest.

Actually, in the case of WRTL, I will be surprised if a court even gets a chance to rule.

Anonymous said...

George seems to be purposely avoiding the question, so I'll ask again...why should there be incentives (like gift cards or vouchers) given by candidates to entice people to get people to vote?