Sunday, December 18, 2011

What can the GAB do?

I think that there has been a persistent and fundamental misstatement of the law with respect to the Government Accountability Board's review of recall petitions. For example, in an editorial in  Saturday, the Journal Sentinel editorial board writes as follows:
The GAB won't do their bidding by striking duplicate or phony names from recall petitions. GAB chief Kevin Kennedy says the agency can't do that under state law. It's up to the folks who want to challenge the petitions - presumably Republicans - to point out such problems, Kennedy says.
Blogger Jay Bullock also offers a legal opinion to the effect that the Board is not empowered to strike duplicate or otherwise obviously invalid signatures. Commenters to this blog and other have suggested that, in refusing to do much of anything to vet the signatures, GAB is just "following the law."


I don't think these statements are true. Here's why.

Sec. 9.10 of the statutes governs recall and requires that "[w]ithin 31 days after the petition is offered for filing, the official with whom the petition is offered for filing shall determine by careful examination whether the petition on its face is sufficient and so state in a certificate attached to the petition." It is simply not the case that the GAB must ignore duplicate signatures of accept signatures that are facially invalid because the name or address is illegible or obviously phony. Indeed, the requirement that the petitions be "carefully examined" suggests that the agency may not do this.
Not surprisingly, then, I don't think that GAB Executive Director Kevin Kennedy has never said that the GAB can't strike duplicate or phony names, only that it won't or is unable to get the job done. This doesn't amount to a lack of legal authority, but a claim of a lack of legal obligation, i.e. that an assertion that the duty of "careful examination" of the petitions does not require that it do these things.
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Whether he is right or not is one of the issues presented by litigation brought against the GAB last week. But the claim that the GAB does not have to root out duplicate signatures and other facially phony or illegible signatures is a different proposition than a claim that in may not do so.

The  view that the GAB has no power to conduct a more rigorous review of the petitions is said to be supported by reference to a challenge process in which challengers to signatures have the burden of proof. But the fact that opponents of recall may challenge signatures does not obviate GAB of its burden to conduct a careful examination or limit its ability to strike facially invalid signatures.

This places the Journal Sentinel editorial board's claim that the GAB won't do the Republicans "bidding by striking duplicate and phony names." The Republicans "bidding" is that the GAB undertake a careful examination of the petition sufficient to determine that it actually has the requisite number of signatures.
I do think that there are some limitations on the GAB's review. It is not required to go beyond the face of the petition, i.e., it does not have to verify addresses or conduct research to determine if an apparently real person "actually" exists or "really' signed the petition. This may, in fact, limit its ability to exclude odd names from apparently valid addresses. Excluding those names may fall on challengers.
But duplicate signatures or those that are obviously false ("Santa Claus, One North Pole Way, Ashwaubenon") are not facially valid.I would also argue that the GAB should not count signatures for which the name or address are illegible. I say that because, for those signatures, there is no way to determine their facial validity.

Will GAB remove these names? It's hard to know but, so far, the indications are that it may not (although some "may" be flagged.) At this point, it is hard to know what GAB intends to do. It's executive director has even been quoted as saying that"the law doesn't require the GAB to read the actual names listed on the petitions." How he reconciles that with the duty of careful examination is unclear.

He has also announced that these things will not be a problem. He may be right. I suspect that is likely to be the case. But there is, of course, no way to know that today and we can't assume the problem away. We surely would not want a referee to announce that he doesn't think the Bears will commit a lot of penalties.

Relying on recall opponents to do what the GAB won't is problematic. As things stand now, recall opponents will have ten days to vet hundreds of thousands of signatures. That is impossible. While that period can and should be extended by court order, I also imagine that recall proponents will do everything that they can to limit the length of any extension.

I and others have called on the Democrats - who claim to have lots and lots of signatures - to allow the process to begin. In response, the only real argument that I have seen is that "they don't have to" and should not give up a tactical advantage -  as if recalling a Governor was some kind of game.

To be sure, some recall supporters have said that the Republicans will just raise spurious challenges but, if the challenges are spurious, they won't succeed. In any event, that argument proves too much. It would justify permitted no review of the petitions.

Others have said that there is "no fraud" with one blogger linking to my argument that there was no fraud in the state supreme court election. But, of course, the reason that I said there was no fraud was that it was, under the circumstances readily detectable and was not detected. I never said that the other side has no right to look.

In this case, a combination of the GAB's preannounced passivity, the volume of signatures necessarily involved in a statewide recall and short statutory review periods may operate to deny one side a meaningful look. That's not OK.

My assumption has always been that public employee unions can get enough signatures to force a recall. They are very powerful - well funded and good at political combat. But the fact that I think that they can and probably will get enough signatures does not mean that it is not is not necessary to verify that they have, in fact, done so.














12 comments:

John Foust said...

Why would the Democrats have any reason to mistrust the Republicans at this point in the game? Sure they will not pull the football away as they approach to kick. Not this time, Charlie Brown, they promise!

If you're arguing for different treatment for Walker than any previously recalled politician, you're going to need to work harder than that. So far, your best argument for an early start is because you do imagine "the Bears will commit a lot of penalties."

After all, any sane person - even the referee at a Bears game - can imagine that that there are 5,000 people who will sign an average of 25 times.

What level of examination was good enough in the past? If you can imagine that it'll be difficult to find duplicates, can you also imagine that it was difficult to gather that many signatures? How much more burden would you like lifted from Walker's shoulders, at taxpayer expense?

There are several stages of detection and correction, of course. The first is the good-faith effort of the petition circulator. Of course we can examine the role of the GAB. Can we imagine why petition circulators would open themselves up to a felony for allowing "Mickey Mouse" to remain unstruck or to encourage duplicate signatures?

As for redefining words, perhaps the GAB can turn to the WisGOP media outlet of the McGyver Institute, who alarms the public with their claim that the GAB will "accept" Mickey Mouse signatures, in the open-ended sense that the official with whom the petition is offered for filing "accepted" them at the counter.

Maxamegalon2000 said...

There's no North Pole Way in Ashwaubenon, but there is a North Pole Lane in Oconomowoc and a North Pole Road in Plover. If the Board does not have to verify addresses or confirm that a person exists, how can any name or address be obviously false?

Rick Esenberg said...

Max

If Santa Claus lives there I'm pretty sure it's a fake on its face. But the Dems could challenge its exclusion.

Rick Esenberg said...

Foust

I'm not proposing to lift any burden. I am reading the law and suggesting that GAB has the power - and the obligation - to do more than it is apparently prepared to do.

Mazo Jeff said...

"How much more burden would you like lifted from Walker's shoulders, at taxpayer expense?"

Mr Foust: Are you suggesting that any political figure should have to personally pay for his/her own defense when doing the public's business in good faith? Why is it the taxpayer gets stuck paying for clean up costs/damage due to a political rally of one persuasion? or pay plaintiff's due as a result of an error or even negligence of a public official? No wonder no one wants to run for public office!!

Mazo Jeff said...

Mr Foust: By not waiting til the next election, you and your ilk are the one's creating this unnecessary expense regardless of who pays!

John Foust said...

I think Mazo Jeff doesn't understand the adversarial nature of the recall process, and he may be trying to say he is in favor of public financing of Republican campaigns, or perhaps the suspension of the entire election process. After all, why should the GOP ever have to pay? They shold be the ones collecting the bribes, not paying them!

Mazo Jeff said...

"The first is the good-faith effort of the petition circulator."

Mr Foust! What about the good faith effort of the Governor to solve out budget problem?? So one person's "good Faith" is more honorable than, say, another with an R behind his/her name??

Mazo Jeff said...

Mr Foust!
So the Union "Bribes" of the puppets are allowed??

Mazo Jeff said...

"he is in favor of public financing of Republican campaigns,"

THIS IS NOT A REPUBLICAN CAMPAIGN but typical Liberal tactic GET SOMEONE ELSE TO PAY FOR IT!!

John Foust said...

Careful, Jeff, you're responding to yourself. This isn't the MJS comment forum.

Mazo Jeff said...

I am sorry, Professor Rick, for violating my own rule

"Nunca discutas con un idiota"