Recall problems

So what is the GAB going to do in its review of the recall petitions? Apparently - for sixty days and at a cost of $ 650,000.00 - it's going to read the petitions to see if there is something approximating (but only approximating) a name and Wisconsin address. If the name is highly likely to be fictitious, is something like an "X" or if the name or address are illegible, the signature counts because it could be right.

As an undertaking this is not worthless, but it's not worth much. I appreciate the problem. Over half a million signatures are a boatload.

But, as I blogged before, the GAB has done more than decide that it will (or recognize that can) do nothing. It has made itself part of the game by 1) publicizing the spectre of a "false flag" petition operation for which there is no real evidence, 2) combining that with a statement (later qualified) that it's OK to sign more than one petition (although it also  "suggested" that people not "sign a second time unless they have good reason to believe the first petition they signed was somehow fraudulent”)*, 3) announcing that it will not weed out duplicate signatures and 4) now announcing that it will ignore obvious red flags as to the validity of a signature and even count as signatures as valid when the validity cannot be tested because there is no legible name or legible address.

In response, at least one major player in the recall effort has produced material saying that it is OK to sign more than once. One Wisconsin Now posted on its website that some one may "sign a recall petition even if you have already signed another recall petition (note, however, that only one signature per person will be counted)." A more accurate statement would be that you can sign more than once only if you reasonably believe that a petition that you did sign has been destroyed. There are anecdotal reports of recall circulators telling people who said they have already signed that "it doesn't matter."

This is a problem for GAB. Having allowed itself to be used in an effort to encourage multiple signatures, it has further raised the potential for fraud by announcing that it can do nothing to ensure the integrity of recall petitions.

I understand the problems that the GAB faces. There is no clear prohibition against multiple signatures although the agency eventually got around to appreciate that certain multiple signings might violate the anti-fraud provisions of Chapter 12. There probably is no good way to review hundreds of thousands of signature.

But all of that underscores the need for careful messaging and care in deciding how to proceed. GAB did not do that just as it did not take care in treating this year's senate recall petitions by the partisan affiliation of the target, arguably conferring (however unintentionally) a significant benefit on the Democrats. When you are the referee, you have to be trusted as well as right and, in accomplishing the former, appearance matters.

I am not one to accuse the GAB or its staff of bias. But this could have been handled better. A better approach would have been to say from the outset that, while it is illegal to falsify or destroy recall petitions, it is also illegal to sign more than one petition with the intent of having one's name counted more than once. (While GAB ultimately said that, this was not the initial message.)

Perhaps the mess we are in was unavoidable given the inherent unwieldiness of the recall process. But we now have a situation where the agency and partisans can plausibly be charged with, intentionally or not, encouraging multiple signatures while the agency simultaneously announces that it can't do anything about it. It is inconceivable that, were the parties' position reversed, the Democrats wouldn't be besides themselves. They were all too willing to call fraud and question the presumption of validity in attacking recall petitions targetting Democratic Senators last spring.

So where are we?

There are two answers to the threat posed by invalid signatures. The first is that few people would do such a thing. In other words, we are  to believe that in a world in which political fervor causes legislators to be assaulted, death threats to be made, state senators to openly flout their constitutional duties, doctors to openly behave in a unprofessional manner and recall opponents and proponents to confront each other on the streets, we need not worry about fraudulent behavior -  that the responsible agency has announced it will not police.

We already know that it not the casethat "no one would cheat." At least one person has been found who claims to have intentionally signed approximately eighty recall petitions in an admitted effort to "cheat" in order to get "Walker out."**

Are there enough such people to cause a problem? I don't know but here's a sobering thought. Let's assume that there are 5000 people who sign an average of 25 times. That sounds like a lot of people but it's less than 1% of the number needed to recall the governor. Such a scenario would result in 120,000 invalid signatures - over 20% of the total required. While I would think that many signatures from one person would be caught even by the GAB, that's nor clear and there are other scenarios that would be more difficult to detect. The point is that a relatively small number of people can create a significant problem. When recall proponents are telling people that they can sign more than once and when the GAB says it won't look for duplicates, the problem cannot be dismissed out of hand.

The second argument is to suggest that recall opponents will root out the fraud. This is often coupled with an argument that the validity of nominating and recall petitions are normally entrusted to the parties. The latter statement is true, but less telling when we are dealing with as many signatures as we are here. It is not at all clear that opponents will have the time, resources and access to do what the GAB says it cannot.

Having said this, I don't think it is likely that duplicate or dubious signatures will bring the validity of the recall petitions into question. My guess is that the likelihood of this being determinative is small, but that doesn't mean that there is nothing to worry about. We are contemplating the validity of an effort to overturn the 2010 gubernatorial election. That this process not be tainted by concerns about fraud and uncertainty regarding the validity of recall petitions is critical.


* As noted in the text, GAB's statements on duplicates have evolved. Later statement suggested that one "should" sign more than once only "if he or she has a reasonable belief that the first petition signed will not be turned in." In light of the report (referenced above) that someone has signed approximately 80 petitions, Kevin Kennedy said that intentionally signing more than once in order to inflate the number of signatures (or create the appearance of widespread fraud) would itself be fraudulent. Put them together and you've got a fair description of the law but it took us awhile to get there. As noted above, at least one significant recall organization used the lack of clarity to mislead voters into thinking that they had an unqualified "right" to sign more than once and that someone would ensure that their signature "would be" counted only once. The former is not quite true and the latter has been called into question by the GAB's statement of its unwillingness or inability to cull out duplicates.
** While charges were promptly (and rightly) brought against a person who destroyed a petition and an individual who behaved like a boor in confronting recall circulators in Brookfield, this guy - who has clearly done more to harm the process than they have - apparently remains undisturbed.