I will be on Charlie Sykes show this morning at 11:07 to discuss the constitutional challenges to ObamaCare.
Yesterday's arguments were a bit of a prelude, addressing a preliminary question, i.e., does the Tax Anti-Injunction Act require the Court to dismiss the challenge to the individual mandate? The law forbids injunctions against the imposition of a tax, requiring that the taxpayer pay it first and then bring a challenge.
But there are three ways in which the case could go forward. First, the Court might find that the Act is not jurisdictional, i.e., that the government can waive it as an obstacle to the case going forward. The government has done that here. Second, the Court could find an exception. Finally, it could conclude that the mandate is not a tax.
The latter point is why yesterday's argument may be something of a prelude. Several of the justices expressed skepticism that the mandate is a tax. That could have bearing on its constitutionality should the challenge proceed because one of the arguments advanced to uphold it is that it is within Congress' taxing power.
It's always dicey to read a lot into oral arguments. Sometimes Justices ask questions in the guise of a devil's advocate - challenging the lawyers to bolster - or address the weaknesses of - a position that they already hold. And there is, of course, the potential for substantial interaction between members of the Court following argument having an impact on positions.
Nevertheless, the consensus of observers regarding yesterday's argument is that it looks like the Court will take up the challenge to the mandate. That is today's topic. More later.
Tuesday, March 27, 2012
Thursday, March 22, 2012
Redistricting Decision Upholds Almost Entire Plan
Today's decision in Baldus v. Brennan and Voces De La Frontera v. Brennan is, from a political perspective, an almost complete victory for the Republicans. It orders nothing more than a change in the boundaries between the Assembly Districts 8 and 9 - neither of which is ever likely to be won by a Republican.
Everything else stays the same and all of the other claims - the claims of a partisan gerrymander, of unacceptable population deviations, of "disenfranchising" voters moved between even and odd state senate districts - are dismissed. The plan essentially stands.
I think that this is a political victory for the Republicans because the one change that the Court has ordered will not have the slightest impact on Republican electoral prospects. Whether you think that's a good or a bad thing, it is a fact.
The decision was well written although there are parts with which I would take issue. It is clear that the panel judges would have preferred a different process and a different type of plan, but they recognized that they are bound by the law and not by their own views of how things should be. They each deserve credit for that.
The only relief ordered by the court settles an internecine dispute in the Latino community. Some community leaders preferred to have one more heavily "packed" Latino district which, they thought, would be more likely to elect a candidate preferred by Latino voters. Other thought that maximizing Latino influence would be better served by having two districts with substantial Latino population. The latter view was well put by Aaron Rodriguez in a recent op-ed in the Journal Sentinel.
I don't agree with the panel's conclusion that the Voting Rights Act compels the legislature to choose one of these strategies over the other in the circumstances of this case. Its decision is, to be sure, a victory for Voces De La Frontera and (I suspect) the current incumbent over other elements of the Latino community (which is hardly uniform). It is, however, pretty much a matter of indifference to the Republicans - at least as their partisan interests are concerned.
So what happens now? From its perspective, the legislature should redraw the boundaries and call it a day. Whether that happens or not will depend on whether the senate Democrats will accept defeat and move on. They may try to block compliance with the court order unless the other districts are revisited. That won't happen and can't happen. They may hope that the court will then give them something that the Republicans won't, but the panel decision has made absolutely clear that won't happen either.
Of course, the plaintiffs may appeal but I don't see any real chance of success. If anything, the panel gave too much credence to their claims even as it rejected them. Although its not clear to me that they have anything to appeal from, I would think that Voces plaintiffs would be well advised not to appeal. They could easily lose their victory.
It is possible - although perhaps not likely - that persons in the Latino community who prefer the boundaries originally passed by the legislature will seek to intervene for purposes of appeal.
But, in the end, much sound and fury signifying very little.
Everything else stays the same and all of the other claims - the claims of a partisan gerrymander, of unacceptable population deviations, of "disenfranchising" voters moved between even and odd state senate districts - are dismissed. The plan essentially stands.
I think that this is a political victory for the Republicans because the one change that the Court has ordered will not have the slightest impact on Republican electoral prospects. Whether you think that's a good or a bad thing, it is a fact.
The decision was well written although there are parts with which I would take issue. It is clear that the panel judges would have preferred a different process and a different type of plan, but they recognized that they are bound by the law and not by their own views of how things should be. They each deserve credit for that.
The only relief ordered by the court settles an internecine dispute in the Latino community. Some community leaders preferred to have one more heavily "packed" Latino district which, they thought, would be more likely to elect a candidate preferred by Latino voters. Other thought that maximizing Latino influence would be better served by having two districts with substantial Latino population. The latter view was well put by Aaron Rodriguez in a recent op-ed in the Journal Sentinel.
I don't agree with the panel's conclusion that the Voting Rights Act compels the legislature to choose one of these strategies over the other in the circumstances of this case. Its decision is, to be sure, a victory for Voces De La Frontera and (I suspect) the current incumbent over other elements of the Latino community (which is hardly uniform). It is, however, pretty much a matter of indifference to the Republicans - at least as their partisan interests are concerned.
So what happens now? From its perspective, the legislature should redraw the boundaries and call it a day. Whether that happens or not will depend on whether the senate Democrats will accept defeat and move on. They may try to block compliance with the court order unless the other districts are revisited. That won't happen and can't happen. They may hope that the court will then give them something that the Republicans won't, but the panel decision has made absolutely clear that won't happen either.
Of course, the plaintiffs may appeal but I don't see any real chance of success. If anything, the panel gave too much credence to their claims even as it rejected them. Although its not clear to me that they have anything to appeal from, I would think that Voces plaintiffs would be well advised not to appeal. They could easily lose their victory.
It is possible - although perhaps not likely - that persons in the Latino community who prefer the boundaries originally passed by the legislature will seek to intervene for purposes of appeal.
But, in the end, much sound and fury signifying very little.
Monday, March 19, 2012
Necessity and Impossibility
One of the commentators to my prior post on the difficulties of proceeding before the Supreme Court with the complaint issued by the Judicial Commission against Justice David Prosser thinks the matter easily resolved by the so-called common law "Rule of Necessity." In a case called Will v. United States, the United States Supreme Court held that a district court could hear a challenge to a law that reduced the compensation of all district judges. Although 28 U.S.C. sec. 455 required disqualification of a judge in any matter "in which his impartiality might reasonably be questioned or where he has a financial interest in the
subject matter in controversy or is a party to the proceeding," the Court concluded that Congress had not intended to repeal the common law rule of necessity. In it's view, an interested judge could hear the case because there would be no other judge to hear it.
It's a fair point and the idea had occurred to me, but I don't think it works here. First, whether Wisconsin law abrogated the rule of necessity is a point on which Will does not control. Second, and more fundamentally, there is a difference between a rule that allows a judge with an interest to hear a case and one that requires a judge who has been a participant to the events at issue to hear a case. Being a witness and being a judge who must evaluate the witnesses are fundamentally incompatible roles.
We can imagine that a judge might set aside his personal interest, but how is he to set aside what he saw? Recusal rules occasionally do make it impossible to get an outcome and, in the unusual circumstances of this case, that may well be what will happen.
Consider the alternative. At best, we are going to have a proceeding in which the extrajudicial impressions formed by the members of the Court will control the outcome. This is inconsistent with judicial function and, even if permitted, something of an empty gesture. Judges - like any other human being - are not going to disbelieve their own eyes because someone else has settled upon a different version of events.
In this case, the rule of Necessity is trumped by the fact of Impossibility.
I continue to believe that this should have been - and could have been - handled in another way.
So what to do now?
The best outcome would be for the parties to reach some creative resolution. I don't think that Justice Prosser will agree to a public reprimand, but perhaps the matter could be resolved by some type of conciliatory statement and commitment to civility - ideally joined in by all members of the Court. But this may be unlikely.
The second best would be to raise the issue of disqualification promptly. If the Court is not inclined to hear the case, then it would be best for this to happen before there is discovery and a evidentiary hearing, neither of which may be helpful or edifying.
The worst outcome would be full blown litigation. I can imagine discovery into the source of leaks to the press and into the background of the participants which would not be helpful to the Court's image or to its interpersonal dynamics - all for little or no gain.
I, for one, hope that can be avoided. But maybe it can't.
It's a fair point and the idea had occurred to me, but I don't think it works here. First, whether Wisconsin law abrogated the rule of necessity is a point on which Will does not control. Second, and more fundamentally, there is a difference between a rule that allows a judge with an interest to hear a case and one that requires a judge who has been a participant to the events at issue to hear a case. Being a witness and being a judge who must evaluate the witnesses are fundamentally incompatible roles.
We can imagine that a judge might set aside his personal interest, but how is he to set aside what he saw? Recusal rules occasionally do make it impossible to get an outcome and, in the unusual circumstances of this case, that may well be what will happen.
Consider the alternative. At best, we are going to have a proceeding in which the extrajudicial impressions formed by the members of the Court will control the outcome. This is inconsistent with judicial function and, even if permitted, something of an empty gesture. Judges - like any other human being - are not going to disbelieve their own eyes because someone else has settled upon a different version of events.
In this case, the rule of Necessity is trumped by the fact of Impossibility.
I continue to believe that this should have been - and could have been - handled in another way.
So what to do now?
The best outcome would be for the parties to reach some creative resolution. I don't think that Justice Prosser will agree to a public reprimand, but perhaps the matter could be resolved by some type of conciliatory statement and commitment to civility - ideally joined in by all members of the Court. But this may be unlikely.
The second best would be to raise the issue of disqualification promptly. If the Court is not inclined to hear the case, then it would be best for this to happen before there is discovery and a evidentiary hearing, neither of which may be helpful or edifying.
The worst outcome would be full blown litigation. I can imagine discovery into the source of leaks to the press and into the background of the participants which would not be helpful to the Court's image or to its interpersonal dynamics - all for little or no gain.
I, for one, hope that can be avoided. But maybe it can't.
What were they thinking?
Here are a few questions about the Judicial Commission's charges against David Prosser. I know two of the members of the Commission and will not accuse it of bias or ill motive. But I have some rather serious questions about the decision to issue charges and can't quite follow the thinking behind it.
Here are my questions.
First, what is the rationale for charging only Justice Prosser? The rules that the Commission says were violated are very general. A judge must be "patient, courteous and dignified." A judge must cooperate with other judges. A judge must maintain high standards of conduct to preserve the integrity of the judicial system.
I want to put aside - at least for now - the allegations about Justice Prosser losing his temper and calling the Chief Justice a bad name. Making that the basis for an ethics complaint is beyond silly. Let's focus on what is the core of the complaint - the altercation between Justices Bradley and Prosser.
The witness accounts of the incident do have a bit of a Roshomon quality. As I have written before, that's not unusual. This was a startling and sudden event. But while the witnesses differ in certain details and in the characterization that each places on what they saw, their accounts can be summarized in the following way.
Justice Bradley came at Justice Prosser - perhaps with some degree of aggressiveness. She may or may not have had her fists raised. He put out his hands (in order, he says, to defend himself). He either intentionally or inadvertently placed them on her neck. Although his hands may have been around her neck,he does not appear to have choked her or had her in a "chokehold."
It was an unedifying moment and one I suspect that both of them wish they could have had back.
Depending on which of the witness accounts one takes to be more accurate, one could conclude that there is probable cause to believe that Justice Prosser violated one of the applicable standards.
But, in fairness, it is also possible to conclude that there is probable cause that Justice Bradley violated one of the applicable standards. This is not a question of "blaming the victim" but in deciding who the victim was and whether there even was a single victim and aggressor. To exonerate one and charge the other - if it can be done - requires one to pick and choose among conflicting accounts of what happened. Moreover, the differences that must be chosen between often relate to very subjective things - someone's tone of voice or how rapidly something happened - that are almost impossible to resolve.
On what basis did the Commission make these choices? It does no good to say that no one filed a complaint against Justice Bradley. We don't Know that this is the case. Besides, although the administrative rules are written in a way that assumes a complaint, nothing in the authorizing statute limits the Commission to the allegations of a complaint or to a complainant's view of what happened.
I would have charged neither but going after one raises some difficult questions. Again, I am not interested in questioning anyone's good faith, but proceeding in this way will inevitably be seen as political and biased.
But there is a bigger problem.
Second, how does the Commission expect this case ever to be decided? A three judge panel will be appointed to conduct the hearing and make a recommendation. While they will make findings of fact and conclusions of law, they actually decide nothing. All of their findings and conclusions are subject to Supreme Court review.
There is an obvious problem. Six of the seven Justices were either involved in or were witnesses to the underlying events. Sec. 757.19(2)(b) provides that "[a]ny judge shall disqualify himself or herself from any civil or criminal action or proceeding when one of the following situations occurs: . . . [w]hen a judge is a party or a material witness." The Judicial Code contains a similar provision.
This seems to make it quite clear that only Justice Patrick Crooks can sit on this case and that means that the Court can't act. Wisconsin Constitution Art VII sec. 4(1) provides that "[a]ny 4 justices shall constitute a quorum for the conduct of the court's business."
In Friday's Journal Sentinel, Franklin Gimbel, who the Commission has hired as a special prosecutor, was quoted as saying that the Court will "have to" hear the case. In making that point, he seems to be saying that it will only have to decide on sanctions if the Commission "establishes" a violation - presumably before the three judge panel who will conduct the hearing.
This is more wishful thinking that anything else. First and most fundamentally, the prohibition against a judge sitting on a case in which he is a witness is not limited to one in which he decides "only" on sanctions. We would never expect a judge to sit on the case of a person charged with a crime that the judge had witnessed on the grounds that the jury will decide guilt.
Second, the Court's role is not limited to deciding on sanctions. It must review the finding of a violation as well. While it is to defer to the findings of fact by the three judge panel, it must nevertheless review them. Under certain circumstances, they can be set aside. Moreover, it will not defer on conclusions of law, e.g. deciding whether the facts that have been found violate the rule,
Is Mr. Gimbel saying that the need to hear this case trumps clearly applicable law regarding disqualification? On what basis?
This appears to be a very unfortunate decision. The Commission has acted on one set of conflicting accounts to bring charges that can't possibly be acted upon. In doing so, it will inflame the divisions on the Court. It has taken a fire that was banked, and thrown gasoline on it without any hope of accomplishing anything.
I understand the Commission's concern about the unseemliness of the incident. But there was a way for it to act without plunging into this morass. Under its own rules - JC 4.08(4) - it could have dismissed the complaint "with such expression of concern or warning" as it deemed appropriate. It could have expressed concern and called on members of the Court to treat each other with respect. It could have called upon the Justices to remember that the outcome in any particular case is important, but so is the integrity of the Court.
Maybe that would have been an empty gesture but these charges are almost certainly one.
Here are my questions.
First, what is the rationale for charging only Justice Prosser? The rules that the Commission says were violated are very general. A judge must be "patient, courteous and dignified." A judge must cooperate with other judges. A judge must maintain high standards of conduct to preserve the integrity of the judicial system.
I want to put aside - at least for now - the allegations about Justice Prosser losing his temper and calling the Chief Justice a bad name. Making that the basis for an ethics complaint is beyond silly. Let's focus on what is the core of the complaint - the altercation between Justices Bradley and Prosser.
The witness accounts of the incident do have a bit of a Roshomon quality. As I have written before, that's not unusual. This was a startling and sudden event. But while the witnesses differ in certain details and in the characterization that each places on what they saw, their accounts can be summarized in the following way.
Justice Bradley came at Justice Prosser - perhaps with some degree of aggressiveness. She may or may not have had her fists raised. He put out his hands (in order, he says, to defend himself). He either intentionally or inadvertently placed them on her neck. Although his hands may have been around her neck,he does not appear to have choked her or had her in a "chokehold."
It was an unedifying moment and one I suspect that both of them wish they could have had back.
Depending on which of the witness accounts one takes to be more accurate, one could conclude that there is probable cause to believe that Justice Prosser violated one of the applicable standards.
But, in fairness, it is also possible to conclude that there is probable cause that Justice Bradley violated one of the applicable standards. This is not a question of "blaming the victim" but in deciding who the victim was and whether there even was a single victim and aggressor. To exonerate one and charge the other - if it can be done - requires one to pick and choose among conflicting accounts of what happened. Moreover, the differences that must be chosen between often relate to very subjective things - someone's tone of voice or how rapidly something happened - that are almost impossible to resolve.
On what basis did the Commission make these choices? It does no good to say that no one filed a complaint against Justice Bradley. We don't Know that this is the case. Besides, although the administrative rules are written in a way that assumes a complaint, nothing in the authorizing statute limits the Commission to the allegations of a complaint or to a complainant's view of what happened.
I would have charged neither but going after one raises some difficult questions. Again, I am not interested in questioning anyone's good faith, but proceeding in this way will inevitably be seen as political and biased.
But there is a bigger problem.
Second, how does the Commission expect this case ever to be decided? A three judge panel will be appointed to conduct the hearing and make a recommendation. While they will make findings of fact and conclusions of law, they actually decide nothing. All of their findings and conclusions are subject to Supreme Court review.
There is an obvious problem. Six of the seven Justices were either involved in or were witnesses to the underlying events. Sec. 757.19(2)(b) provides that "[a]ny judge shall disqualify himself or herself from any civil or criminal action or proceeding when one of the following situations occurs: . . . [w]hen a judge is a party or a material witness." The Judicial Code contains a similar provision.
This seems to make it quite clear that only Justice Patrick Crooks can sit on this case and that means that the Court can't act. Wisconsin Constitution Art VII sec. 4(1) provides that "[a]ny 4 justices shall constitute a quorum for the conduct of the court's business."
In Friday's Journal Sentinel, Franklin Gimbel, who the Commission has hired as a special prosecutor, was quoted as saying that the Court will "have to" hear the case. In making that point, he seems to be saying that it will only have to decide on sanctions if the Commission "establishes" a violation - presumably before the three judge panel who will conduct the hearing.
This is more wishful thinking that anything else. First and most fundamentally, the prohibition against a judge sitting on a case in which he is a witness is not limited to one in which he decides "only" on sanctions. We would never expect a judge to sit on the case of a person charged with a crime that the judge had witnessed on the grounds that the jury will decide guilt.
Second, the Court's role is not limited to deciding on sanctions. It must review the finding of a violation as well. While it is to defer to the findings of fact by the three judge panel, it must nevertheless review them. Under certain circumstances, they can be set aside. Moreover, it will not defer on conclusions of law, e.g. deciding whether the facts that have been found violate the rule,
Is Mr. Gimbel saying that the need to hear this case trumps clearly applicable law regarding disqualification? On what basis?
This appears to be a very unfortunate decision. The Commission has acted on one set of conflicting accounts to bring charges that can't possibly be acted upon. In doing so, it will inflame the divisions on the Court. It has taken a fire that was banked, and thrown gasoline on it without any hope of accomplishing anything.
I understand the Commission's concern about the unseemliness of the incident. But there was a way for it to act without plunging into this morass. Under its own rules - JC 4.08(4) - it could have dismissed the complaint "with such expression of concern or warning" as it deemed appropriate. It could have expressed concern and called on members of the Court to treat each other with respect. It could have called upon the Justices to remember that the outcome in any particular case is important, but so is the integrity of the Court.
Maybe that would have been an empty gesture but these charges are almost certainly one.
Thursday, March 15, 2012
Shark's Bracket
Humiliation is good for the soul. I have just uploaded my bracket.
Here are my first round upsets.
13 New Mexico State over 4 Indiana
12 Long Beach State over 5 New Mexico
14 Belmont over 3 Georgetown
11 NC State over 6 San Diego State
The Sweet Sixteen: Kentucky, Wichita State, Baylor, Duke, Michigan State, Louisville, Marquette, Missouri, Kansas State (!), Wisconsin, Florida State, Ohio State, North Carolina, Temple, North Carolina State and Kansas.
The Elite Eight: Wisconsin, Florida State, Ohio State, North Carolina, Kansas, Missouri, Michigan State, Baylor, Kentucky
The Final Four: Wisconsin, North Carolina, Kentucky, Missouri, Kentucky.
Kentucky over North Carolina on Monday night.
Here's where I'm sure to be wrong.
Wisconsin doesn't have the firepower to get that far. But I think it comes down to the Vanderbilt game. Syracuse is going out early. The winner of UW-Vanderbilt takes the bracket. (I'd like to see Harvard make a run but it won't happen.) I've decided that it's just still our time. (Hey, Lunardi has them there too.)
I'm betting against Tom Izzo. Probably a mistake.
Kentucky may just be too young.
I am not confident that Marquette makes the Sixteen. I think they are only a slight favorite over Murray State and could even lose to BYU today.
Here are my first round upsets.
13 New Mexico State over 4 Indiana
12 Long Beach State over 5 New Mexico
14 Belmont over 3 Georgetown
11 NC State over 6 San Diego State
The Sweet Sixteen: Kentucky, Wichita State, Baylor, Duke, Michigan State, Louisville, Marquette, Missouri, Kansas State (!), Wisconsin, Florida State, Ohio State, North Carolina, Temple, North Carolina State and Kansas.
The Elite Eight: Wisconsin, Florida State, Ohio State, North Carolina, Kansas, Missouri, Michigan State, Baylor, Kentucky
The Final Four: Wisconsin, North Carolina, Kentucky, Missouri, Kentucky.
Kentucky over North Carolina on Monday night.
Here's where I'm sure to be wrong.
Wisconsin doesn't have the firepower to get that far. But I think it comes down to the Vanderbilt game. Syracuse is going out early. The winner of UW-Vanderbilt takes the bracket. (I'd like to see Harvard make a run but it won't happen.) I've decided that it's just still our time. (Hey, Lunardi has them there too.)
I'm betting against Tom Izzo. Probably a mistake.
Kentucky may just be too young.
I am not confident that Marquette makes the Sixteen. I think they are only a slight favorite over Murray State and could even lose to BYU today.
Tuesday, March 13, 2012
More on Voter ID and what's next
I was struck by a couple of things in Judge Neiss' decision in League of Women Voters v. Walker. The first is how short it is. The decision is not even eight full pages including three unusually long quotes from other decisions that are either inconclusive or unhelpful. The second is that much of what is there is given over to rhetoric better suited to affirming conclusions already reached than to legal analysis supporting those conclusions. Both of these characteristics lead to a number of unanswered questions.
First, the theory in this case is a bit different than last week's case, NAACP v. Walker. The idea here is that Art. III, secs. 1 and 2 of the state Constitution authorize the legislature to pass certain types of laws regarding voting. Art. III, sec. 1 provides that everyone who is a United States citizen over 18 who is resident in an election district is a qualified elector of that district. Art. III, sec. 2 states that laws may be passed defining residency, providing for registration and absentee voting, excluding certain defined classes of persons from suffrage and extending suffrage.
Judge Niess says that a photo identification requirement is not among the types of laws authorized by the Constitution. But this seems to be clearly wrong. The legislature certainly can pass laws enforcing the provisions of Art. III, secs 1 and 2. Judge Niess recognizes this, conceding that the legislature has implicit power to regulate elections.
That unavoidable concession would seem to be a rather serious obstacle to the plaintiffs' position. The photo ID law is quite clearly a law designed to enforce Art. III, sec. 1's definition of a qualified voter and Wisconsin's registration scheme which is authorized by Art, III, sec. 2. In other words, it is a way to verify that the person attempting to vote is that person who has registered to vote in the district (and is, therefore, a US citizen over the age of 18 who resides in the district).
You may not think it's necessary or a good idea, but that's not the legal question. If the law cannot stand, it must be because, even though it is within the legislature's power, it burdens the right to vote in some constitutionally impermissible way.
Unfortunately the decision simply assumes its conclusion. It doesn't really tell us why or even how we are to go about distinguishing between permitted and forbidden burdens. It asserts that the law abridges the right to vote, but doesn't explain how. To be sure, it imposes requirements that, if not complied with, will result in an inability to vote. But many permissible regulations of elections do that. If you don't comply with registration requirements, you can't vote. If you don't comply with the requirements of obtaining an absentee ballot or show up at the right polling place at the right time and during the right hours, you can't vote.
So it can't simply be that the law imposes some mandatory condition on exercise of the franchise. What it is about photo ID that is different and, more importantly, what is the standard by which its burden on the right to vote is to be assessed? The decision doesn't say. The court makes no finding of facts because it believes that no findings of fact are necessary. The decision refers to affidavits that have been filed but does not rely on (or explain) them, ultimately asserting only that there may be some people who lack the "financial, physical, mental, or emotional" resources to comply. (Emphasis supplied.)
What does that mean? Is it that there are some people who cannot get an ID? If so, who are they? Assuming that a few such people exist, does that justify striking the entire law? If there is always some way to get an ID, is it nevertheless a constitutional problem that the law makes it "too much trouble" to vote? If that's so, then what is the standard by which we determine how much trouble is too much?
I know what the plaintiffs can and cannot say about these matters. But I don't know how, for the court, they added up to a constitutional violation - at least not in any way that can be measured against the applicable constitutional language and case law.
So what's next? This case was filed before change in the venue law so that the appeal is to District IV of the Court of Appeals. Last week's case cannot be appealed to District IV, but must be venued in another district of the state's choosing. I would expect both courts to certify the respective cases to the state Supreme Court.
First, the theory in this case is a bit different than last week's case, NAACP v. Walker. The idea here is that Art. III, secs. 1 and 2 of the state Constitution authorize the legislature to pass certain types of laws regarding voting. Art. III, sec. 1 provides that everyone who is a United States citizen over 18 who is resident in an election district is a qualified elector of that district. Art. III, sec. 2 states that laws may be passed defining residency, providing for registration and absentee voting, excluding certain defined classes of persons from suffrage and extending suffrage.
Judge Niess says that a photo identification requirement is not among the types of laws authorized by the Constitution. But this seems to be clearly wrong. The legislature certainly can pass laws enforcing the provisions of Art. III, secs 1 and 2. Judge Niess recognizes this, conceding that the legislature has implicit power to regulate elections.
That unavoidable concession would seem to be a rather serious obstacle to the plaintiffs' position. The photo ID law is quite clearly a law designed to enforce Art. III, sec. 1's definition of a qualified voter and Wisconsin's registration scheme which is authorized by Art, III, sec. 2. In other words, it is a way to verify that the person attempting to vote is that person who has registered to vote in the district (and is, therefore, a US citizen over the age of 18 who resides in the district).
You may not think it's necessary or a good idea, but that's not the legal question. If the law cannot stand, it must be because, even though it is within the legislature's power, it burdens the right to vote in some constitutionally impermissible way.
Unfortunately the decision simply assumes its conclusion. It doesn't really tell us why or even how we are to go about distinguishing between permitted and forbidden burdens. It asserts that the law abridges the right to vote, but doesn't explain how. To be sure, it imposes requirements that, if not complied with, will result in an inability to vote. But many permissible regulations of elections do that. If you don't comply with registration requirements, you can't vote. If you don't comply with the requirements of obtaining an absentee ballot or show up at the right polling place at the right time and during the right hours, you can't vote.
So it can't simply be that the law imposes some mandatory condition on exercise of the franchise. What it is about photo ID that is different and, more importantly, what is the standard by which its burden on the right to vote is to be assessed? The decision doesn't say. The court makes no finding of facts because it believes that no findings of fact are necessary. The decision refers to affidavits that have been filed but does not rely on (or explain) them, ultimately asserting only that there may be some people who lack the "financial, physical, mental, or emotional" resources to comply. (Emphasis supplied.)
What does that mean? Is it that there are some people who cannot get an ID? If so, who are they? Assuming that a few such people exist, does that justify striking the entire law? If there is always some way to get an ID, is it nevertheless a constitutional problem that the law makes it "too much trouble" to vote? If that's so, then what is the standard by which we determine how much trouble is too much?
I know what the plaintiffs can and cannot say about these matters. But I don't know how, for the court, they added up to a constitutional violation - at least not in any way that can be measured against the applicable constitutional language and case law.
So what's next? This case was filed before change in the venue law so that the appeal is to District IV of the Court of Appeals. Last week's case cannot be appealed to District IV, but must be venued in another district of the state's choosing. I would expect both courts to certify the respective cases to the state Supreme Court.
The Inconvenient Glen Grothmann
So much of our political dialogue isn't serious. Here's a recent example.
Senator Glen Grothman is being criticized for suggesting that nonmarital parenthood is related to child abuse. He has sponsored a bill to require the state Child Abuse and Neglect Prevention Board to create educational materials that would stress the connection between nonmarital parenthood and child abuse.
All the usual suspects are up in arms. This is supposedly "anti-women" and "ignorant." It "targets" and "labels" single mothers. Tanya Atkinson, Executive Director of Planned Parenthood, says that ""[w]omen are really really getting fed up by all of this kind of legislation, they want it to stop and we're seeing them really raise up their voices ...."
Let's put aside the fact that "women" do not generally do anything en masse and, I'm pretty sure, did not elect Tanya Atkinson gender spokesperson. There is one inconvenient fact.
Grothman may well be right.
I've done a of reading on this in connection with the marriage issue. There is an awful lot of support for Grothman's position. Children raised in single parent and step families are more likely to be the victims of abuse and neglect.This is not to say that all - or, thank God, even most - single or step parents will be abusers. It simply reflects the fact that raising children alone or with someone who is not that child's biological parent (and, therefore, likely to be less invested in that child) is difficult. Although some people try to dismiss the correlation by pointing out that single parent households are poorer, this doesn't explain away the phenomenon and poverty can itself be the product of single parenthood. At the very least, the correlation presents a series of questions that policymakers cannot ignore
The uncomfortable fact is that family structure appears to matter. While there are people who pull it off well, the difficulties of single and step families lead to a higher rate of abuse and neglect and poorer outcomes for kids than we find in households of married biological parents. The Brady Bunch was one of the crueler myths of the Sixties.
I'm not so sure that I like the bill. I don't know that it helps much to fund another government agency to tell people what to do. But that's a libertarian objection and an expression of suspicion about the ability of government - as opposed to organic institutions - to have much impact on people by putting out pamphlets and holding meetings. Grothman's critics on the left are generally unconcerned about government getting up in people's business.
They just think that Big Macs and inefficient light bulbs are a greater threat to the public weal than children raised without fathers.
The larger point is that Grothman has spoken a truth that the left doesn't want to hear. So they'll distort it and vilify him. They'll do it even though he has got an awful lot of evidence on his side.
Tell me again who's anti-intellectual?
Senator Glen Grothman is being criticized for suggesting that nonmarital parenthood is related to child abuse. He has sponsored a bill to require the state Child Abuse and Neglect Prevention Board to create educational materials that would stress the connection between nonmarital parenthood and child abuse.
All the usual suspects are up in arms. This is supposedly "anti-women" and "ignorant." It "targets" and "labels" single mothers. Tanya Atkinson, Executive Director of Planned Parenthood, says that ""[w]omen are really really getting fed up by all of this kind of legislation, they want it to stop and we're seeing them really raise up their voices ...."
Let's put aside the fact that "women" do not generally do anything en masse and, I'm pretty sure, did not elect Tanya Atkinson gender spokesperson. There is one inconvenient fact.
Grothman may well be right.
I've done a of reading on this in connection with the marriage issue. There is an awful lot of support for Grothman's position. Children raised in single parent and step families are more likely to be the victims of abuse and neglect.This is not to say that all - or, thank God, even most - single or step parents will be abusers. It simply reflects the fact that raising children alone or with someone who is not that child's biological parent (and, therefore, likely to be less invested in that child) is difficult. Although some people try to dismiss the correlation by pointing out that single parent households are poorer, this doesn't explain away the phenomenon and poverty can itself be the product of single parenthood. At the very least, the correlation presents a series of questions that policymakers cannot ignore
The uncomfortable fact is that family structure appears to matter. While there are people who pull it off well, the difficulties of single and step families lead to a higher rate of abuse and neglect and poorer outcomes for kids than we find in households of married biological parents. The Brady Bunch was one of the crueler myths of the Sixties.
I'm not so sure that I like the bill. I don't know that it helps much to fund another government agency to tell people what to do. But that's a libertarian objection and an expression of suspicion about the ability of government - as opposed to organic institutions - to have much impact on people by putting out pamphlets and holding meetings. Grothman's critics on the left are generally unconcerned about government getting up in people's business.
They just think that Big Macs and inefficient light bulbs are a greater threat to the public weal than children raised without fathers.
The larger point is that Grothman has spoken a truth that the left doesn't want to hear. So they'll distort it and vilify him. They'll do it even though he has got an awful lot of evidence on his side.
Tell me again who's anti-intellectual?
Saturday, March 10, 2012
The Facts Regarding the Walker Defense Fund
So how much innuendo and speculation can we squeeze out of the fact that Governor Walker has established a legal defense fund? Should the heavy breathing begin?
In reporting on the creation of the fund, Dan Bice cites a summary of the statute authorizing the creation of such a fund which suggests that it can only be created when an official is under investigation. He then quotes two lawyers who say the same thing,
But, once again, it's not so simple. With all due respect, Dan should have cited the law itself. Here is what it says:
This is, I think, what former Judge William Jennaro (who is also quoted in the Bice column) is driving at when he says that the formation of a defense fund does not necessarily mean that Walker is being investigated.
But there's more.
It is not clear that Governor Walker would have any way to know whether he is "under investigation." The Wisconsin Supreme Court has held that persons summoned to provide information in a John Doe do not have to be informed of the nature of the proceeding or whether or not they are a target investigation. Ryan v. State, 79 Wis. 2d 83, 255 N.W.2d 910 (1977).
In fact, a free wheeling and long running investigation that goes where ever the spirit moves it (and this one seems to fit that bill) may not even have a clearly defined list of "targets."
Of course, it is possible that the Governor is being personally "investigated." In fact, "being investigated" is an amorphous concept. I would expect that, if a prosecutor is investigating the conduct of someone who worked for me and thinks he or she has found evidence of wrongdoing, that prosecutor might try to find out if I knew about it or directed to happen. I suppose that constitutes being "investigated."
But, of course, it doesn't imply that I am guilty or even that there is probable cause to suspect that I am guilty. That I may do what any lawyer would advise me to do (particularly in a partisan context) and engage counsel to make sure that I am treated fairly and my rights are respected doesn't imply guilt either.
In reporting on the creation of the fund, Dan Bice cites a summary of the statute authorizing the creation of such a fund which suggests that it can only be created when an official is under investigation. He then quotes two lawyers who say the same thing,
But, once again, it's not so simple. With all due respect, Dan should have cited the law itself. Here is what it says:
Any candidate or public official who is being investigated for, charged with or convicted of a criminal violation of this chapter or ch. 12, or whose agent is so investigated, charged or convicted, may establish a defense fund for expenditures supporting or defending the candidate or agent, or any dependent of the candidate or agent, while that person is being investigated for, or while the person is charged with or convicted of a criminal violation of this chapter or ch. 12. (emphasis supplied)In other words, one can set up a defense fund under sec. 11.64 when one's agent is under investigation. Thus, it is entirely plausible that the fund was set up because people who worked for Walker are under investigation and that he has been forced to incur legal fees because of that. It may well be that he is not "under investigation."
This is, I think, what former Judge William Jennaro (who is also quoted in the Bice column) is driving at when he says that the formation of a defense fund does not necessarily mean that Walker is being investigated.
But there's more.
It is not clear that Governor Walker would have any way to know whether he is "under investigation." The Wisconsin Supreme Court has held that persons summoned to provide information in a John Doe do not have to be informed of the nature of the proceeding or whether or not they are a target investigation. Ryan v. State, 79 Wis. 2d 83, 255 N.W.2d 910 (1977).
In fact, a free wheeling and long running investigation that goes where ever the spirit moves it (and this one seems to fit that bill) may not even have a clearly defined list of "targets."
Of course, it is possible that the Governor is being personally "investigated." In fact, "being investigated" is an amorphous concept. I would expect that, if a prosecutor is investigating the conduct of someone who worked for me and thinks he or she has found evidence of wrongdoing, that prosecutor might try to find out if I knew about it or directed to happen. I suppose that constitutes being "investigated."
But, of course, it doesn't imply that I am guilty or even that there is probable cause to suspect that I am guilty. That I may do what any lawyer would advise me to do (particularly in a partisan context) and engage counsel to make sure that I am treated fairly and my rights are respected doesn't imply guilt either.
Thursday, March 08, 2012
Retire the Wall of Separation Metaphor
So Jim Burkee, a political science professor at Concordia (just down the road from me), wrote a column in Sunday's Journal Sentinel reacting to Rick Santorum's statement that reading John F. Kennedy's 1960 speech on the separation of church and state made him want to "throw up."
Two things. First, I've met Jim Burkee and he's a bright guy. Second, Santorum's comment was overwrought.
But still ....
Criticism of Kennedy's speech as offering a over drawn view of the separation of church and state and a miserly view of the relationship between faith and public life did not originate with Rick Santorum. It is a political speech given for political purposes but it can be read to suggest that faith has nothing to say about policy and that whatever the government does or sponsors should be utterly devoid of religion. Burkee echoes this when he calls on conservatives to "build high the wall" of separation.
I have done a lot of work in this area and have become convinced of two things. First, the wall of separation is an overused metaphor that is almost entirely unhelpful in thinking about any of the real issues about the relationship between faith and public life. A wall, of course, cannot be breached by those on either side. If religion must avoid the concerns of politics then politics must avoid the concerns of religion.
That's a workable proposition only if you take a very narrow view of the province of either religion or politics. Once you recognize that religion is not simply about prayers on Sunday or making a series of claims about extratemporal matters unrelated to how to live life on earth, only the most modest government will remain on its side of the wall.
And once you allow (as we almost all do) that government has a role to play in educating children and providing social services or fighting wars, it is in religion's business. If you want a state as active as modern Progressives, you are all over it.
Kennedy's latent assumption was that religion is largely private. But that's a hotly contested view - one that few religious people believe. Even in his own time, much of the impetus behind the civil rights movement was religious. Did he really mean - and does Jim Burkee mean - that figures like Martin Luther King should have "offered no advice" to political leaders.
I agree with Jim that too much interaction between government and religion does religion no good (even if I'm completely unpersuaded that the decline of Christianity in Europe has anything to do with state support), but answering difficult questions about the extent to which religious views might be expressed in forums associated with the government, the proper cultural norms surrounding religious arguments for public policy (there are no legal limitations) and the extent to which government policy may intrude on religious practice and conscience are not readily answered by resort to a metaphor. There must be certain separations between religion and state, but referring to a "wall" that must be "high" and "absolute" doesn't help in deciding what they ought to be.
Two things. First, I've met Jim Burkee and he's a bright guy. Second, Santorum's comment was overwrought.
But still ....
Criticism of Kennedy's speech as offering a over drawn view of the separation of church and state and a miserly view of the relationship between faith and public life did not originate with Rick Santorum. It is a political speech given for political purposes but it can be read to suggest that faith has nothing to say about policy and that whatever the government does or sponsors should be utterly devoid of religion. Burkee echoes this when he calls on conservatives to "build high the wall" of separation.
I have done a lot of work in this area and have become convinced of two things. First, the wall of separation is an overused metaphor that is almost entirely unhelpful in thinking about any of the real issues about the relationship between faith and public life. A wall, of course, cannot be breached by those on either side. If religion must avoid the concerns of politics then politics must avoid the concerns of religion.
That's a workable proposition only if you take a very narrow view of the province of either religion or politics. Once you recognize that religion is not simply about prayers on Sunday or making a series of claims about extratemporal matters unrelated to how to live life on earth, only the most modest government will remain on its side of the wall.
And once you allow (as we almost all do) that government has a role to play in educating children and providing social services or fighting wars, it is in religion's business. If you want a state as active as modern Progressives, you are all over it.
Kennedy's latent assumption was that religion is largely private. But that's a hotly contested view - one that few religious people believe. Even in his own time, much of the impetus behind the civil rights movement was religious. Did he really mean - and does Jim Burkee mean - that figures like Martin Luther King should have "offered no advice" to political leaders.
I agree with Jim that too much interaction between government and religion does religion no good (even if I'm completely unpersuaded that the decline of Christianity in Europe has anything to do with state support), but answering difficult questions about the extent to which religious views might be expressed in forums associated with the government, the proper cultural norms surrounding religious arguments for public policy (there are no legal limitations) and the extent to which government policy may intrude on religious practice and conscience are not readily answered by resort to a metaphor. There must be certain separations between religion and state, but referring to a "wall" that must be "high" and "absolute" doesn't help in deciding what they ought to be.
The Pride of the Ph.D.
One of my favorite writers on policy is Jim Manzi. He has a book coming out called "Uncontrolled" in which, I take it, he explores the limitations of social science (at least as currently practiced) and the value of randomized controlled trials.
In commenting on the book, Arnold Kling writes something that I think goes to the heart of what makes many people - including me - conservatives. Kling begins by noting that society, at any given time, includes both "embedded" wisdom and "embedded error." He continues:
The application of social science to public policy is an attempt to use conscious knowledge to replace embedded error. What I call Hayekian conservatism is the view that social scientists know so little that these attempts are more likely to undermine embedded wisdom than to correct embedded error. Therefore, policy ought to be cautious. .....
Hayek would argue that there is embedded wisdom in society that is beyond the understanding of social scientists. Call these the "unknown knowns," if you will. That is, social scientists are not aware of how habits and institutions work, but these habits and institutions have, through evolution, accumulated tacit knowledge. As social scientists, we can make some guesses about how property rights, the rule of law, trust, and trade contribute to higher per capita GDP. However, we are not able to explicitly "fix" underdeveloped countries. Richer countries are richer in the unknown knowns.Extremely well put and much more important, I think, in the Age of Obama. As I argued here, he is strongly in the tradition of "top-down" Progressivism. He favors comprehensive, uniform, centrally determined policies.
(H/T: Russ Roberts)
Fluke and Limbaugh; Pills and Insurance
So how about Sandra Fluke and Rush Limbaugh?
Let's start with Rush? I don't listen much to his show. I've heard enough to know that he has a satiric style which ought not to be taken literally. On the other hand, he ought to have know that his comments could be understood as an attack on Ms. Fluke's personal conduct and should never have made them. They detract from the debate, undermine his position and are just mean.
On the other hand, the shock and horror is a bit contrived. Limbaugh's remarks were out of bounds, but are, unfortunately, not unique.
But here's the thing. I know nothing about Ms. Fluke's personal behavior and don't need to. In that area of life, I can only wish everyone the best. I personally believe that Ms. Fluke - and everyone else - should have as much sex as they want that is consistent with the commitments that they have made to others and their own well being.
Ms. Fluke's "promiscuity" - if we have to use that word - has nothing to with sex. It has everything to do with the assumption that other people ought to be made to pay for her stuff.
I intend to write separately on the religious liberty issues. There is an economic issue as well. Insurance, properly understood, is a hedge against risk. You pay something now to be covered against an expense that is extraordinary and unpredictable.
You don't insure against routine and ordinary expenses. Our auto insurance, for example, doesn't pay for gas and oil changes. We don't purchase grocery insurance. To do so would not be to buy insurance, but to simply buy the right to have someone else pay our bills. Moreover, as the expenses that we "insure" in this way become more routine and ordinary, the cost of the "insurance" will come to approximate what we'd pay for the goods or services in the absence of insurance - perhaps a little more since we have to compensate the party who we have contracted to pay them for us. There is no free lunch.
Contraception is closer to grocery insurance than it is to insurance against, say, getting cancer or being in a car wreck.* Most people will need it for a significant part of their lives and the cost is not high relative to the other goods and services we must obtain. Ms. Fluke's estimate of $1000/yr seems to be wildly overstated and there are, of course, alternatives to birth control pills that are extremely inexpensive if somewhat less desirable. Regardless of religious liberty objections, the case for insuring against the cost of birth control pills is weak. At best and even in the context of a student health plan, it is a transfer of wealth from students who are not sexually active to those who are. The "fairness" in that is not self evident.
But, you say, what about the fact that contraception can reduce health care costs by preventing pregnancy. Again let's put aside the religious liberty objections. Catholic institutions, for example, don't say that their religious objections can be overcome by the money the save.
If this were true, then contraception coverage would not require a mandate. Insurers and employers would be happy to provide it in the same way that you'll give you a discount for having health screenings or participating in company wellness programs.
What about the poor? I'm all for a social safety net, but that's not what this debate is about. A mandate on private insurance will cover very few people who are truly poor. If that were the issue, we'd be talking about providing contraception through Medicaid - which we already do. I have no problem with that.
Let me close by saying something unexpected. It is now well documented that Ms. Fluke is not a run of the mill law student but a left wing activist. Nothing wrong with that. It has been pointed out that she has argued that health insurance plans should be required to cover sex change operations.
I don't think that they should but as a simple matter of the nature of insurance, there is a stronger case to be made for covering sex changes than for covering contraception. The need for a sex change, after all, is unusual, unpredictable and expensive. Putting aside arguments about morality and the nature of the "transgendered," I may well want to insure against the possibility that I will one day learn that I must change my gender.
Having said all of this, I understand that we have come to use health insurance to pay for routine and ordinary expenses. That is not necessarily a good thing but it is unlikely to change any time soon. Nevertheless, it seems to me that whether or not to cover contraception ought to be left to private decisionmakers. If it is a good idea, it will happen. If certain employers have a moral objection, those rights of conscience will be respected.
*That may not be true where oral contraceptions are prescribed for something other than preventing pregnancy but, Ms. Fluke's anectodes notwithstanding, that's not what this controversy is about.
Let's start with Rush? I don't listen much to his show. I've heard enough to know that he has a satiric style which ought not to be taken literally. On the other hand, he ought to have know that his comments could be understood as an attack on Ms. Fluke's personal conduct and should never have made them. They detract from the debate, undermine his position and are just mean.
On the other hand, the shock and horror is a bit contrived. Limbaugh's remarks were out of bounds, but are, unfortunately, not unique.
But here's the thing. I know nothing about Ms. Fluke's personal behavior and don't need to. In that area of life, I can only wish everyone the best. I personally believe that Ms. Fluke - and everyone else - should have as much sex as they want that is consistent with the commitments that they have made to others and their own well being.
Ms. Fluke's "promiscuity" - if we have to use that word - has nothing to with sex. It has everything to do with the assumption that other people ought to be made to pay for her stuff.
I intend to write separately on the religious liberty issues. There is an economic issue as well. Insurance, properly understood, is a hedge against risk. You pay something now to be covered against an expense that is extraordinary and unpredictable.
You don't insure against routine and ordinary expenses. Our auto insurance, for example, doesn't pay for gas and oil changes. We don't purchase grocery insurance. To do so would not be to buy insurance, but to simply buy the right to have someone else pay our bills. Moreover, as the expenses that we "insure" in this way become more routine and ordinary, the cost of the "insurance" will come to approximate what we'd pay for the goods or services in the absence of insurance - perhaps a little more since we have to compensate the party who we have contracted to pay them for us. There is no free lunch.
Contraception is closer to grocery insurance than it is to insurance against, say, getting cancer or being in a car wreck.* Most people will need it for a significant part of their lives and the cost is not high relative to the other goods and services we must obtain. Ms. Fluke's estimate of $1000/yr seems to be wildly overstated and there are, of course, alternatives to birth control pills that are extremely inexpensive if somewhat less desirable. Regardless of religious liberty objections, the case for insuring against the cost of birth control pills is weak. At best and even in the context of a student health plan, it is a transfer of wealth from students who are not sexually active to those who are. The "fairness" in that is not self evident.
But, you say, what about the fact that contraception can reduce health care costs by preventing pregnancy. Again let's put aside the religious liberty objections. Catholic institutions, for example, don't say that their religious objections can be overcome by the money the save.
If this were true, then contraception coverage would not require a mandate. Insurers and employers would be happy to provide it in the same way that you'll give you a discount for having health screenings or participating in company wellness programs.
What about the poor? I'm all for a social safety net, but that's not what this debate is about. A mandate on private insurance will cover very few people who are truly poor. If that were the issue, we'd be talking about providing contraception through Medicaid - which we already do. I have no problem with that.
Let me close by saying something unexpected. It is now well documented that Ms. Fluke is not a run of the mill law student but a left wing activist. Nothing wrong with that. It has been pointed out that she has argued that health insurance plans should be required to cover sex change operations.
I don't think that they should but as a simple matter of the nature of insurance, there is a stronger case to be made for covering sex changes than for covering contraception. The need for a sex change, after all, is unusual, unpredictable and expensive. Putting aside arguments about morality and the nature of the "transgendered," I may well want to insure against the possibility that I will one day learn that I must change my gender.
Having said all of this, I understand that we have come to use health insurance to pay for routine and ordinary expenses. That is not necessarily a good thing but it is unlikely to change any time soon. Nevertheless, it seems to me that whether or not to cover contraception ought to be left to private decisionmakers. If it is a good idea, it will happen. If certain employers have a moral objection, those rights of conscience will be respected.
*That may not be true where oral contraceptions are prescribed for something other than preventing pregnancy but, Ms. Fluke's anectodes notwithstanding, that's not what this controversy is about.
Wednesday, March 07, 2012
Recalls and Judging
Last night, I got a call from WKOW in Madison about the fact that Judge Flanagan had signed a Walker recall petition and that the Republican Party intends to file a complaint with the Judicial Commission. This prompted me to take a look at the Judicial Code of Ethics in between coverage of Super Tuesday and Championship Week. (Harvard is dancing for the first time since '46!).
I report. You decide.
In Dan Bice's column, Mike Maistelman says that its not a problem because the Governor was not sued in his personal capacity. It's not that easy.
SCR 60.06(2)(a) prohibits a judge from, among other things, participation in the "affairs, caucuses, promotions, platforms, endorsements, conventions, or activities of a political party or a candidate for partisan office" and says that a judge may not "[p]ublicly endorse or speak on behalf of its candidates or platforms."
Has he done either of these? I think it would be a stretch to say that he did the former but less of a stretch to argue that he did the latter. Signing a recall petition could be viewed as a public endorsement of a partisan position. If the purpose of the rule is to prevent judges from publicly injecting themselves into partisan elections, he can be said to have done that.
It is possible (although also a bit of a stretch) that he simply thought the voters should have a chance to vote in a recall election. He might also argue that signing a recall petition is, in any event, more like a general indication of support such as affiliation with a party. The rules prohibit that, too, but that prohibition was held to be unconstitutional in a case called Siefert v. Alexander. The Siefert court held that, absent some specific and individualized relationship, the relationship between simply announcing party affiliation and the potential for bias was insufficiently close to justify the rule's restriction on speech.
But the Siefert court upheld the rule against endorsement. The state does have an interest, it said, in preventing judges from injecting themselves into partisan elections. But maybe a signing a recall petition does differ in material ways from an endorsement. The signature of any one individual is normally not used to promote a candidate or partisan platform.
One can argue - and I have - that ethical rules should be construed in a way that gives those who are subject to them clear notice of what is requirend and which minimizes interference with constitutionally protected rights.
But there are two more rules to worry about.
SCR 60.05(a) says that a judge "shall conduct all of the judge's extra-judicial activities" so they do not "cast reasonable doubt on the judge's capacity to act impartially as a judge. " Here is where Brother Maistelman's point might have some weight but it's hardly dispositive. Walker was, as he notes, sued in his official capacity. But the recall petition is aimed at removing him from that capacity for acts undertaken in that capacity. The voter ID law has been one of his more prominent legislative accomplishments.
If a judge signs a recall petition and then sits on a a case challenging a key legislative accomplishment of the targetted politician in which the politician is a defendant, might a reasonable person question his capacity to act impartially? Is it reasonable to be concerned that the judge, who has publicly stated that he wants that politican out of office might be tempted - however subtly - to help that process along by holding that the politician has promoted and signed into law an unconstitutional act?
In answering that question, is the concern underlying SCR 60.06(2)(a) - the idea that judges should not inject themselves into partisan politics - instructive?
Similarly, SCR 60.04(a) provides that "a judge shall recuse himself or herself in a proceeding when the facts and circumstances the judge knows or reasonably should know establish one of the following or when reasonable, well-informed persons knowledgeable about judicial ethics standards and the justice system and aware of the facts and circumstances the judge knows or reasonably should know would reasonably question the judge's ability to be impartial"
The same question must be asked and answered. Keep in mind that the recusal question here is a bit different than when asked at the Supreme Court level. The Supreme Court is a collegial law developing court of last resort. Justices who recuse themselves are not replaced. Recusal raises a whole set of issues that simply don't exist at the trial court level where a judge who steps aside is simply replaced by another.
But keep in mind as well that it is not enough to say that he exercised poor judgment or should not have signed the petition. That his signature would become public and that people would raise hell was perfectly foreseeable. For him to sign a recall petition and then proceed to sit on a case involving one of the Governor's more prominent policy initiatives was certainly to sow the wind. But even if that makes signing a poor choice, that alone does not make it a violation of the ethical rules.
So what do you think?
Quick Reaction to Voter ID Decision
Yesterday's decision in NAACP v. Walker enjoining the voter ID bill may be hard to defend. It's weakness is that there is not much law to support to it. Indeed, it is very hard to reconcile with Crawford v. Marion County Election Board, the United States Supreme Court decision upholding Indiana's voter ID bill.
Crawford was an equal protection case decided under the United States Constitution. There is no clearly recognized right to vote under the United States Constitution although the Wisconsin Constitution does have a suffrage provision. See Wis. Const. Art. III, sec. 1. The plaintiffs in NAACP brought there claims under that provision and Wisconsin's equal protection guarantee (Art. I, sec. 1) which can, at least under certain circumstances, be read to provide more limitations on the government than the federal equal protection guarantee (although it almost never is.)
Yesterday's decision survives only if the Wisconsin Supreme Court is willing to subject laws regulating voting to much more exacting scrutiny than the United States Supreme Court did in Crawford.
But I don't see that happening.Let's review.
Without rehearsing all of the legal niceties, reliance on the Wisconsin Constitution gives the plaintiffs an opportunity to argue that laws that may make it more difficult to vote should be subject to what lawyers call heightened scrutiny. Judge Flanagan accepted that argument, stating that the law must be subject to what is "strict scrutiny," i.e., that the law must be necessary to serve a compelling interest.
This is what I think won't hold up on appeal. While it may be superficially attractive to say that anything that makes it harder to exercise the "sacred" and "fundamental" right to vote should be held to this high standard, a little thought reveals that this is not a workable idea. Elections have to have rules. Rules will make it harder to vote than it might otherwise be. Recognizing this, courts have not always subjected rules regulating voting to "strict" or even "heightened" scrutiny. Rather, they have tended to do so only when the restriction on the voting rights of some group of electors has been severe or is wholly unrelated to the qualifications to vote and the rational administration of elections.
In Crawford, for example, one group of justices (Chief Justice Roberts, Justice Stevens and Justice Kennedy) employed an ad hoc balancing test to evaluate the Indiana law. Another group (Justices Scalia, Thomas and Alito) said that only severe restrictions on voting rights would be subject to strict scrutiny while others would be subject to a deferential standard. According to these justices, '[o]rdinary and widespread burdens, such as those requiring 'nominal effort' of everyone, are not severe." They saw the voter ID law as such a "non severe" burden and upheld it.
I suspect the Wisconsin Supreme Court will apply this less exacting standard. There is not much support for the circuit court's position that it will impose a higher standard. The court cites some older cases that are really not apposite.
The plaintiffs will still argue that there is a better evidentiary record here than there was in Crawford and that Wisconsin's law is more restrictive.
The evidentiary record, however, may not be as different as it appears. There was arguably even less record of a voting fraud problem in Crawford. Nevertheless, six members of the Court held that the state's interest in preventing and deterring voter fraud, dealing with inflated and inaccurate voter rolls and instilling voter confidence justified the law. Although there seems to be a better record here of how many persons lack ID, both the Stevens and Scalia groups seem to have been more interested in how many would lack ID after the provision of free ID for voting. The evidence cited by Judge Flanagan doesn't really do that.
The one thing that seems different about Wisconsin law is that, apart from religious objectors and certain people that are, for lack of a better word, "shut ins," there is no provision for voting without ID. Indiana allowed people who couldn't get an ID due to indigency to vote by affidavit although the process for doing that was not very easy.
But this is not be enough to uphold a facial challenge, i.e., one that strikes down the entire law. If this is a constitutional problem (and if the Wisconsin Constitution follows Crawford, that's far from clear), it may only mean that persons who are truly unable to obtain an ID will be excepted from producing one. It is unclear how many people that really is. Studies seeking to show that photo ID laws actually disenfranchise people, even though conducted by scholars who oppose ID, have been inconclusive.
Maybe there is a stronger case to be made. The decision has all the signs of being a rush job, citing incorrect provisions of the Constitution, garbling a few sentences and, most oddly, referring to Justice "William Scalia." My guess is that the judge wanted to get it out there as far in advance of the April election as he could. He may make a more persuasive case when he takes more time.
My guess is that the state will try to take an interlocutory appeal. One interesting thing to watch is whether the AG's office will choose, as it now may do, a court of appeals district other then District IV (which sits in Dane County). Whatever it does, I think it is likely that the court of appeals will certify the matter to the state Supreme Court.
Crawford was an equal protection case decided under the United States Constitution. There is no clearly recognized right to vote under the United States Constitution although the Wisconsin Constitution does have a suffrage provision. See Wis. Const. Art. III, sec. 1. The plaintiffs in NAACP brought there claims under that provision and Wisconsin's equal protection guarantee (Art. I, sec. 1) which can, at least under certain circumstances, be read to provide more limitations on the government than the federal equal protection guarantee (although it almost never is.)
Yesterday's decision survives only if the Wisconsin Supreme Court is willing to subject laws regulating voting to much more exacting scrutiny than the United States Supreme Court did in Crawford.
But I don't see that happening.Let's review.
Without rehearsing all of the legal niceties, reliance on the Wisconsin Constitution gives the plaintiffs an opportunity to argue that laws that may make it more difficult to vote should be subject to what lawyers call heightened scrutiny. Judge Flanagan accepted that argument, stating that the law must be subject to what is "strict scrutiny," i.e., that the law must be necessary to serve a compelling interest.
This is what I think won't hold up on appeal. While it may be superficially attractive to say that anything that makes it harder to exercise the "sacred" and "fundamental" right to vote should be held to this high standard, a little thought reveals that this is not a workable idea. Elections have to have rules. Rules will make it harder to vote than it might otherwise be. Recognizing this, courts have not always subjected rules regulating voting to "strict" or even "heightened" scrutiny. Rather, they have tended to do so only when the restriction on the voting rights of some group of electors has been severe or is wholly unrelated to the qualifications to vote and the rational administration of elections.
In Crawford, for example, one group of justices (Chief Justice Roberts, Justice Stevens and Justice Kennedy) employed an ad hoc balancing test to evaluate the Indiana law. Another group (Justices Scalia, Thomas and Alito) said that only severe restrictions on voting rights would be subject to strict scrutiny while others would be subject to a deferential standard. According to these justices, '[o]rdinary and widespread burdens, such as those requiring 'nominal effort' of everyone, are not severe." They saw the voter ID law as such a "non severe" burden and upheld it.
I suspect the Wisconsin Supreme Court will apply this less exacting standard. There is not much support for the circuit court's position that it will impose a higher standard. The court cites some older cases that are really not apposite.
The plaintiffs will still argue that there is a better evidentiary record here than there was in Crawford and that Wisconsin's law is more restrictive.
The evidentiary record, however, may not be as different as it appears. There was arguably even less record of a voting fraud problem in Crawford. Nevertheless, six members of the Court held that the state's interest in preventing and deterring voter fraud, dealing with inflated and inaccurate voter rolls and instilling voter confidence justified the law. Although there seems to be a better record here of how many persons lack ID, both the Stevens and Scalia groups seem to have been more interested in how many would lack ID after the provision of free ID for voting. The evidence cited by Judge Flanagan doesn't really do that.
The one thing that seems different about Wisconsin law is that, apart from religious objectors and certain people that are, for lack of a better word, "shut ins," there is no provision for voting without ID. Indiana allowed people who couldn't get an ID due to indigency to vote by affidavit although the process for doing that was not very easy.
But this is not be enough to uphold a facial challenge, i.e., one that strikes down the entire law. If this is a constitutional problem (and if the Wisconsin Constitution follows Crawford, that's far from clear), it may only mean that persons who are truly unable to obtain an ID will be excepted from producing one. It is unclear how many people that really is. Studies seeking to show that photo ID laws actually disenfranchise people, even though conducted by scholars who oppose ID, have been inconclusive.
Maybe there is a stronger case to be made. The decision has all the signs of being a rush job, citing incorrect provisions of the Constitution, garbling a few sentences and, most oddly, referring to Justice "William Scalia." My guess is that the judge wanted to get it out there as far in advance of the April election as he could. He may make a more persuasive case when he takes more time.
My guess is that the state will try to take an interlocutory appeal. One interesting thing to watch is whether the AG's office will choose, as it now may do, a court of appeals district other then District IV (which sits in Dane County). Whatever it does, I think it is likely that the court of appeals will certify the matter to the state Supreme Court.
Thursday, March 01, 2012
Hate from a writer at Slate
From Russ Roberts at Cafe Hayek:
Andrew Breitbart has passed away. I didn’t know him. I never met him. I know little about him. I know he had something to do with the hidden camera video that exposed ACORN as not being very particular about the kind of people that they helped. Google it if you don’t know about it. He was a conservative. A conservative activist with a bit of the prankster in him. That’s what I know. Anyway, Breitbart has died at 43.
Here is what Matt Yglesias just tweeted (misspelling Breitbart’s name):
Conventions around dead people are ridiculous. The world outlook is slightly improved with @AndrewBrietbart dead
Huh? I have no trouble with the idea that when bad people die it’s OK to say bad things about them. But that second sentence stuns me. For starters, Breitbart leaves behind a wife and four kids. I would never presume that one’s public acts dwarf the private ones. But put that aside. Somebody dies whose politics are different from yours and you conclude that the world is now a better place?
I am sympathetic to the idea that my views on how the world works are the right ones. But dear God, please spare me from hubris that says people who look at the world in a way that is different from my own make the world a worse place and their passing is a plus.I can't put it any better. What's disturbing is that Matthew Yglesias is a fairly prominent pundit.
Sunday, February 26, 2012
Misuse of Ryan Braun Decision
So it turns out that some folks on the left want to use the Braun verdict as some kind of validation of the supposedly unique benefits offered by collective bargaining. Apparently non-unionized employers who do drug testing don't care about chain of custody or whether their testing results are accurate. They just want to jettison employees without regard to whether or not they have used drugs.
I have advised on such a program (although I am not a fan of drug testing in non-hazardous or athletic workplaces) and I must have been hallucinating about the care and fairness that non-unionized employer insisted upon. Yes, they were wonderful people but they were also acting in their self interest. Why would you want a program that wasn't as accurate?
There are arguments that can be made for unionization. But treating employees more "fairly" is generally not one of them. Under certain circumstances - mostly in private companies facing few competitive pressures, unions can increase wages. The implementation of work rules and process beyond those that an employer would rationally choose are far more likely to protect poor performers than the unjustly treated.
I have advised on such a program (although I am not a fan of drug testing in non-hazardous or athletic workplaces) and I must have been hallucinating about the care and fairness that non-unionized employer insisted upon. Yes, they were wonderful people but they were also acting in their self interest. Why would you want a program that wasn't as accurate?
There are arguments that can be made for unionization. But treating employees more "fairly" is generally not one of them. Under certain circumstances - mostly in private companies facing few competitive pressures, unions can increase wages. The implementation of work rules and process beyond those that an employer would rationally choose are far more likely to protect poor performers than the unjustly treated.
Friday, February 24, 2012
Well I hate to say ...
So the Democrats have now dropped their claim of a partisan gerrymander. This is the one I said was "almost frivolous." Comments are open for apologies.
Majority Minority Districts Are Not a Simple Matter
Fantastic column by Aaron Rodriguez in today's Journal Sentinel on the drawing of Assembly districts on the south side of Milwaukee. There are two views on how to treat minority populations in redistricting.
One is to say that we should do whatever we can to create districts that have a sufficiently large minority population to permit a minorty group to elect the candidate of its choice. The traditional view is that this requires a supermajority minority district because of differences in turnout, age and, in some case, citizenship status between minority and white populations.
In the past, this has often created an alliance between minority groups and Republicans. Republicans have no objection to packing minority voters who noramlly vote for Democrats and professional minority groups want to get a safe district.
But there is another view. Maybe it would be better to have a larger number of districts in which voters of a minority group would have a chance to elect the candidate of their choice - or to influence the outcome. Is it, for example, better to have a one 65% Hispanic district or two 55% Hispanic districts?
The answer is not obvious even if the only thing that you consider is "what should Hispanic voters want?" And, from a legal perspective, the question becomes more vexed because what Hispanic voters would want is not the legal standard for redistricting.
One is to say that we should do whatever we can to create districts that have a sufficiently large minority population to permit a minorty group to elect the candidate of its choice. The traditional view is that this requires a supermajority minority district because of differences in turnout, age and, in some case, citizenship status between minority and white populations.
In the past, this has often created an alliance between minority groups and Republicans. Republicans have no objection to packing minority voters who noramlly vote for Democrats and professional minority groups want to get a safe district.
But there is another view. Maybe it would be better to have a larger number of districts in which voters of a minority group would have a chance to elect the candidate of their choice - or to influence the outcome. Is it, for example, better to have a one 65% Hispanic district or two 55% Hispanic districts?
The answer is not obvious even if the only thing that you consider is "what should Hispanic voters want?" And, from a legal perspective, the question becomes more vexed because what Hispanic voters would want is not the legal standard for redistricting.
MLB Hits a Foul Ball
As I understand the rules that Major League Baseball agreed to abide by in administering its drug testing program, drug testing and any appeal of a positive test result is to remain confidential until the process has run its course and a sanction is imposed. Even then, what can be said publicly is very limited.
This policy of confidentiality was violated when someone leaked Braun's test results to ESPN. Assuming (and I think we can) that Braun didn't leak it, the guilty party was almost certainly an employee or agent of MLB. MLB should be embarrassed by that. In light of that, its decision to issue a statement that MLB "vehemently" disagrees with the arbitration panel's decision to throw out Braun's positive test and rescind his suspension is, as they say in the game, bush league.
Had someone working for MLB not leaked the results, it could have made no public statement about the arbitration decision. No one would have known of the test results or the appeal.
But, now, because MLB violated its agreement with the players once, it apparently has decided to double down and break the rules - or at least their spirit - once again.
The agreement does have a provision that allows MLB to "respond to any inaccurate or misleading claims by ... [a] Player that could undermine the integrity and/or credibility of the Program. " Perhaps that's how they would justify what otherwise appears to be an impermissible statement. Braun defended himself.
But Braun wouldn't have had to defend himself if MLB had managed to follow the rules in the first instance. I understand that it may think Braun is guilty or be worried about the implications of a player getting off and undermining the impression that the drug testing is flawless. They may have thought that the neutral arbitrator imposed a standard for assessing the validity of the chain of custody that was too high.
But the fact that this has become public is MLB's fault. It should have taken its lumps and kept its collective mouth shut.
This policy of confidentiality was violated when someone leaked Braun's test results to ESPN. Assuming (and I think we can) that Braun didn't leak it, the guilty party was almost certainly an employee or agent of MLB. MLB should be embarrassed by that. In light of that, its decision to issue a statement that MLB "vehemently" disagrees with the arbitration panel's decision to throw out Braun's positive test and rescind his suspension is, as they say in the game, bush league.
Had someone working for MLB not leaked the results, it could have made no public statement about the arbitration decision. No one would have known of the test results or the appeal.
But, now, because MLB violated its agreement with the players once, it apparently has decided to double down and break the rules - or at least their spirit - once again.
The agreement does have a provision that allows MLB to "respond to any inaccurate or misleading claims by ... [a] Player that could undermine the integrity and/or credibility of the Program. " Perhaps that's how they would justify what otherwise appears to be an impermissible statement. Braun defended himself.
But Braun wouldn't have had to defend himself if MLB had managed to follow the rules in the first instance. I understand that it may think Braun is guilty or be worried about the implications of a player getting off and undermining the impression that the drug testing is flawless. They may have thought that the neutral arbitrator imposed a standard for assessing the validity of the chain of custody that was too high.
But the fact that this has become public is MLB's fault. It should have taken its lumps and kept its collective mouth shut.
Thursday, February 23, 2012
More Scientists Behaving Badly
By way of full disclosure, I am a Policy Advisor with the Heartland Institute. My guess is that I have spent about two hours ever doing anything in connection with it and the post is without renumeration in any form. But there you have it.
I not entirely in agreement with Heartland' s position on global warming. Everytime I delve into the topic, it seems to me that is entirely possible that human activity is causing warming but that it is almost impossible to be certain or to know the magnitude. Claims of catastropic consequences seem overblown and many of the proposed remedies are worse than the disease. I would think that policy responses are appropriate but not the ones most often advanced by the environmental left.
But, although there have been recent reports that scientific misconduct may be greater than we'd expect, I have never - ever - heard of scientists behaving as badly as some of the more adamant proponents of the "AGW as existential threat" school. We're all aware of the Climategate e-mails, but, now, someone apparently called Heartland and lied to get a staffer to send out a confidential package of materials for a board meeting. It appears that one of the documents - setting forth strategy on climate issues - is a phony although it is unclear where it comes from. It was not among the documents fraudulently obtained from Heartland.
So who lied to Heartland to get its documents. I would have expected the culprit to be a blogger or some clever but unknown person without a reputation to protect. It turns out to have been Peter Gleick — a MacArthur “Genius Award” recipient, a (recently resigned) chairman of the “Task Force on Ethics” at the American Geophysical Union, a (recently resigned) member of the National Center for Science Education, and current president of the Pacific Institute.
Megan McCardle (who supports carbon taxes in response to AGW) tells the story. Gleick doesn't admit creating the allegedly forged document. But he does admit lying to Heartland in order to fraudulently obtain its internal documents. As Megan McCardle puts it, "this is that this would be an absolutely astonishing lapse of judgement for someone in their mid-twenties, and is truly flabbergasting coming from a research institute head in his mid-fifties." She writes that "what Gleick did is insane for someone in his position--so crazy that I confess to wondering whether he doesn't have some sort of underlying medical condition that requires urgent treatment."
If AGW skeptics wanted to stage misbehavior in order to discredit people supported a more dire view of AGW, they couldn't have done better. You can't make this stuff up.
As an aside, the Heartland documents discuss an educational project in Wisconsin called "Operation Angry Badger." Until I read the leaked documents, I never heard of it and don't know the first thing about it.
I not entirely in agreement with Heartland' s position on global warming. Everytime I delve into the topic, it seems to me that is entirely possible that human activity is causing warming but that it is almost impossible to be certain or to know the magnitude. Claims of catastropic consequences seem overblown and many of the proposed remedies are worse than the disease. I would think that policy responses are appropriate but not the ones most often advanced by the environmental left.
But, although there have been recent reports that scientific misconduct may be greater than we'd expect, I have never - ever - heard of scientists behaving as badly as some of the more adamant proponents of the "AGW as existential threat" school. We're all aware of the Climategate e-mails, but, now, someone apparently called Heartland and lied to get a staffer to send out a confidential package of materials for a board meeting. It appears that one of the documents - setting forth strategy on climate issues - is a phony although it is unclear where it comes from. It was not among the documents fraudulently obtained from Heartland.
So who lied to Heartland to get its documents. I would have expected the culprit to be a blogger or some clever but unknown person without a reputation to protect. It turns out to have been Peter Gleick — a MacArthur “Genius Award” recipient, a (recently resigned) chairman of the “Task Force on Ethics” at the American Geophysical Union, a (recently resigned) member of the National Center for Science Education, and current president of the Pacific Institute.
Megan McCardle (who supports carbon taxes in response to AGW) tells the story. Gleick doesn't admit creating the allegedly forged document. But he does admit lying to Heartland in order to fraudulently obtain its internal documents. As Megan McCardle puts it, "this is that this would be an absolutely astonishing lapse of judgement for someone in their mid-twenties, and is truly flabbergasting coming from a research institute head in his mid-fifties." She writes that "what Gleick did is insane for someone in his position--so crazy that I confess to wondering whether he doesn't have some sort of underlying medical condition that requires urgent treatment."
If AGW skeptics wanted to stage misbehavior in order to discredit people supported a more dire view of AGW, they couldn't have done better. You can't make this stuff up.
As an aside, the Heartland documents discuss an educational project in Wisconsin called "Operation Angry Badger." Until I read the leaked documents, I never heard of it and don't know the first thing about it.
Redistricting Trial: Some Things to Watch
Here are some observations regarding the redistricting case.
First, while press reports on legal matters are notoriously inaccurate, Pat Marley is a pretty good reporter. He reports Judge Stadtmueller as announcing that "appearances are everything." The context of the statement is unclear so I express not view on the remark,. But it does suggest an important question.
Are "appearances" anything in this case?
Let's get this out of the way. While I am reluctant to second guess lawyers who actually had to make a particular decision, I agree that having legislators sign nondisclosure agreements looks like a bad idea. I am not certain that such agreements would even be enforceable. It also seems that the Republicans tried to claim privilege over too much and fought too hard over producing documents in discovery. You can't make communications subject to privilege by the simple expedient of passing the through a lawyer and, while it's hard to be sure without going over all the filings, it appears that they tried to wall off an awful lot.*
Because I have seen lots of lawyers try to do something like this, I am not as outraged by it as others might be. Contrary to what is reported in the papers, it is not at all clear that it kept much private that would have otherwise been unilaterally made public during the legislative process. Legislative caucuses typically keep their strategies close to the vest and it is not unusual to outside consultants to be employed in redistricting. That documents might be subject to an open records request does not mean that they will - or must be - made public in the absence of a request.
But however one regards this, it has relatively little to do with the merits ot the plan.
First, discovery is something that happens in litigation after the fact. Trying to evade discovery cannot form a basis for invalidation of the plan. While judges can enter judgment as a sanction for discovery abuse. that is clearly not warranted by the (admittedly aggressive) position that the Republican legislators took on discovery and would be almost - if not completely - unheard of in a case of this public importance.
So for any of these "appearances" to be relevant, they would have to transgress some judicially enforceable federal law. It does not good to say that you think that the Republicans violated traditional notions of open government. That is not a violation of federal law.
There is no federal duty to make drafting records public or to take more time to draft a plan or to permit more public input or even to hold discussions of the plan in public. To be sure, such records might be subject to the state open records law and a gathering of legislators might be subject to the open meetings law, but none of those things are issues in the redistricting case nor, as we will see, could they be.
Federal courts do not have a freestanding authority to overturn legislative enactments because they don't like the process by which they were accomplished. Unless these appearances can be connected to a cause of action cognizable in federal court, they mean nothing.
The only way I can think of that happening is that if it was found to be probative of some prohibited intent. But, as I have written before, a desire to obtain partisan advantage is not one of those.
Second (and somewhat related), Judge Stadtmueller's reported remarks also seem to suggest that he assumes the court can entertain state law claims. This may be misreported, but it suggests an important point. As a general matter, federal courts will not order state officials to conform their conduct to state law. See, e.g., Pennhurst v, Halderman, It's an Eleventh Amendment thing. Maybe there is some basis for avoiding that limitation here, but the presumption would seem to run the other way.
This is significant for a number of reasons. While I have argued that a challenge to the plan as a partisan gerrymander or to the districts as insufficiently contiguous and compact is next to impossible under applicable federal law, I have also argued that such a claim may be more likely to succeed under the state constitution which has a requirement that districts be as contiguous and compact as possible. The plaintiffs could have pursued this claim in state court. They chose not to do so. It's unclear that they can even raise the claim in federal court. Again, the general rule is that they cannot.
So this would mean - no state constitutional claim. No Open Meetings claims . No claim based on the state constitutional guarantee of open sessions of the legislature. (I don't think that the latter two claims would have any merit, but it would seem that they don't even get out of the gate here.)
Third, the state defendants argued that they cannot change the plan due to a Supreme Court decision called State ex rel Smith v. Zimmerman. That case said that Art. IV, sec. 3 of the Wisconsin Constitution permits only one redistricting between the decennial censuses.
I don't agree. Lawyers for the plaintiffs argued, at least, that Zimmerman shouldn't apply because the legislature is still in the same session.
That's not a bad argument. Art. IV, sec. 3 says that the reapportionment must be done during the first session after an enumeration. So maybe the "one time only" limitation can be read to apply to the entire session.
Still, if that were the only way to distinguish Zimmerman, I'd be with the defendants. But there's more. Zimmerman was decided before federal review of redistricting was as common place as it is today. It is not clear to me that the Wisconsin Supreme Court would apply Zimmerman to prohibit amendments to bolster a plan's resistance to federal view. There are a number of cases in which federal courts have found a plan wanting but permitted the legislature to take first crack at fixing it (although that is, admittedly, a different issue.)
This morning the panel has ruled that the legislature can amend the plan. While I think that's correct, a federal court is not the ultimate arbiter of that issue. It may well be that someone will challenge any amendment of the plan under Zimmerman in state court. (Such a claim would, however, become moot should the plan be found to be legally deficient.)
Fourth, the Republicans have announced that they do not intend to change the plan. I understand the rationale. Even if they could satisfy the demands of some of the plaintiffs (and they probably couldn't), others might sue.
But could they have - and should they have - changed a plan in a way that would have resolved the case.
There seem to be two issues. One is that there are presumably "too many" voters who have been moved to a new district in a way that causes them to have to wait an extra two years to vote for a Senator. This happens when voters are moved between odd numbered and even numbered districts (which is all the time). Depending on which group was up during the last time the old maps were used, some of these voters will wind up having to wait six years to vote for a Senator. To use s simple example, imagine that I lived in District 1 and have been moved to District 2. Assume a plan has gone into effect and that even numbered districts voted in 2010. I last voted for the state senate in 2008. I won't be able to do so again until 2014.
Courts have recognized that this is an inevitable feature of redistricting and have rejected claims that this is unconstitutional disenfranchisement. The reasoning is that the need to defer to state legislatures and to redistrict outweighs the harm from any temporary disenfranchisement,.
A 1983 case from Wisconsin, Republican Party v. Elections Board , did invalidate a plan on that basis. But it is not particularly helpful here because that case seems to have turned on the fact that voters were "deferred" as a result of a plan adopted after a constitutionally valid plan was already in place. The court expressly stated that, had the same plan been adopted in the first instance, it would have been upheld yet because the plan moved voters from even to odd districts it still would have in voters having to wait six years.
So the argument has to be that there are "too many" voters who have to wait an extra two years. But how one could go about deciding how many deferred voters is "too many" is hard to imagine. One could, I suppose, adopt a rule that a new plan must deviate as little as possible from an old plan but there is absolutely no legal support for that. The old plan does not occupy a position of privilege.
If a partisan gerrymander is effectively nonjusticiable, I can't imagine how this could be.The theory seems to be that the burden of proof should be shifted and the legislature should be required to explain why they did what they did. My guess is that the legislature will be able to offer some justification, but the problem is that redistricting is a zero sum game in which any particular decision is a product of many other decisions. There are literally hundreds of options and all will have various strengths and weaknesses. The various criteria by which a plan might be considered "strong" or "weak" are multiple and often contradictory. There is no real way to choose among them and this is why allegations of partisan gerrymanders have, one way or another, been nonstarters.
The other issue is whether one should have created a different Hispanic majority district on the south side of Milwaukee under sec. 2 of the Voting Rights Act. This has to do with whether or not a relatively small number of voters should have been moved from one district to another and which of a number of alternatives - which were negotiated with various Hispanic groups - should have been adopted. **
The law on this is complicated - even convoluted. One must show that a 1) a minority group is sufficiently large and geographically compact to comprise a majority of the district; 2) the minority group is politically cohesive (it must demonstrate a pattern of voting for the same candidates); and, 3) white voters vote sufficiently as a bloc usually to defeat the minority group’s preferred candidate. But even then, it must be determined that, under a totality of the circumstances, the failure to create a majority minority district deprives minority voters an opportunity to elect candidates of their choice.
As a general matter, Republicans love to create majority minority voters. It involves packing Democratic voters which is a time honored way of drawing a favorable map, Here there were a number of alternatives discussed with Hispanic groups and, from the perspective of wanting to maximize Hispanic political influence, there were reasonable arguments to be made in favor of all of them. In fact, one Hispanic group has already announced that they would sue if the legislature departed from the current map.
This is a small part of the plan and doing what the plaintiffs want would do little or nothing to change the plan's acceptability to Democrats and Republicans. It's not at all clear to me that justice - or even the interests of Hispanics - would be served by giving Voces the south side district that it wants. To be sure any change to a map has ripple effects, but a change here wouldn't hurt Republicans much or do much for Democrats. A case could have been made that redrawing the plan to give Voces what it wants would be the better part of valor and would not cede much legislative prerogative.
But that's not what happened so here we go. Comments are on but posts that do nothing but call names or make personal attacks will be removed. I am interested in substantive responses only. No one cares about your snark.
*UPDATE: I have now read portions of Jim Troupis' deposition which was taken last night. While Jim was apparently not involved with nondisclosure agreements (or discovery in the litigation), he offers a trenchant explanation of why maps need to be held close to the vest - even from members of the majority caucus - in order to get them done. NDAs may be bad atmospherically and, as I say, might not be enforceable, but having the whole caucus - much less the whole legislature - in the process of drafting maps would be, he says, like "herding cats." Jim offers a quite cogent explanation of the process and why it was conducted in the way it was.It won't convince the rabidly partisan, but if you have questions about the process, you should read the transcript. It's quite instructive and undercuts much of the false outrage.
**UPDATE: Today's paper breathlessly reports the testimony of a UW Political Science Professor that more voters were moved "than needed." To say that something was more than necessary requires the establishment of a standard by which "need" can be measured. Moving as few people as possible could be a standard but it's not one that is legally privileged or a constitutional reguirement for redistricting.
First, while press reports on legal matters are notoriously inaccurate, Pat Marley is a pretty good reporter. He reports Judge Stadtmueller as announcing that "appearances are everything." The context of the statement is unclear so I express not view on the remark,. But it does suggest an important question.
Are "appearances" anything in this case?
Let's get this out of the way. While I am reluctant to second guess lawyers who actually had to make a particular decision, I agree that having legislators sign nondisclosure agreements looks like a bad idea. I am not certain that such agreements would even be enforceable. It also seems that the Republicans tried to claim privilege over too much and fought too hard over producing documents in discovery. You can't make communications subject to privilege by the simple expedient of passing the through a lawyer and, while it's hard to be sure without going over all the filings, it appears that they tried to wall off an awful lot.*
Because I have seen lots of lawyers try to do something like this, I am not as outraged by it as others might be. Contrary to what is reported in the papers, it is not at all clear that it kept much private that would have otherwise been unilaterally made public during the legislative process. Legislative caucuses typically keep their strategies close to the vest and it is not unusual to outside consultants to be employed in redistricting. That documents might be subject to an open records request does not mean that they will - or must be - made public in the absence of a request.
But however one regards this, it has relatively little to do with the merits ot the plan.
First, discovery is something that happens in litigation after the fact. Trying to evade discovery cannot form a basis for invalidation of the plan. While judges can enter judgment as a sanction for discovery abuse. that is clearly not warranted by the (admittedly aggressive) position that the Republican legislators took on discovery and would be almost - if not completely - unheard of in a case of this public importance.
So for any of these "appearances" to be relevant, they would have to transgress some judicially enforceable federal law. It does not good to say that you think that the Republicans violated traditional notions of open government. That is not a violation of federal law.
There is no federal duty to make drafting records public or to take more time to draft a plan or to permit more public input or even to hold discussions of the plan in public. To be sure, such records might be subject to the state open records law and a gathering of legislators might be subject to the open meetings law, but none of those things are issues in the redistricting case nor, as we will see, could they be.
Federal courts do not have a freestanding authority to overturn legislative enactments because they don't like the process by which they were accomplished. Unless these appearances can be connected to a cause of action cognizable in federal court, they mean nothing.
The only way I can think of that happening is that if it was found to be probative of some prohibited intent. But, as I have written before, a desire to obtain partisan advantage is not one of those.
Second (and somewhat related), Judge Stadtmueller's reported remarks also seem to suggest that he assumes the court can entertain state law claims. This may be misreported, but it suggests an important point. As a general matter, federal courts will not order state officials to conform their conduct to state law. See, e.g., Pennhurst v, Halderman, It's an Eleventh Amendment thing. Maybe there is some basis for avoiding that limitation here, but the presumption would seem to run the other way.
This is significant for a number of reasons. While I have argued that a challenge to the plan as a partisan gerrymander or to the districts as insufficiently contiguous and compact is next to impossible under applicable federal law, I have also argued that such a claim may be more likely to succeed under the state constitution which has a requirement that districts be as contiguous and compact as possible. The plaintiffs could have pursued this claim in state court. They chose not to do so. It's unclear that they can even raise the claim in federal court. Again, the general rule is that they cannot.
So this would mean - no state constitutional claim. No Open Meetings claims . No claim based on the state constitutional guarantee of open sessions of the legislature. (I don't think that the latter two claims would have any merit, but it would seem that they don't even get out of the gate here.)
Third, the state defendants argued that they cannot change the plan due to a Supreme Court decision called State ex rel Smith v. Zimmerman. That case said that Art. IV, sec. 3 of the Wisconsin Constitution permits only one redistricting between the decennial censuses.
I don't agree. Lawyers for the plaintiffs argued, at least, that Zimmerman shouldn't apply because the legislature is still in the same session.
That's not a bad argument. Art. IV, sec. 3 says that the reapportionment must be done during the first session after an enumeration. So maybe the "one time only" limitation can be read to apply to the entire session.
Still, if that were the only way to distinguish Zimmerman, I'd be with the defendants. But there's more. Zimmerman was decided before federal review of redistricting was as common place as it is today. It is not clear to me that the Wisconsin Supreme Court would apply Zimmerman to prohibit amendments to bolster a plan's resistance to federal view. There are a number of cases in which federal courts have found a plan wanting but permitted the legislature to take first crack at fixing it (although that is, admittedly, a different issue.)
This morning the panel has ruled that the legislature can amend the plan. While I think that's correct, a federal court is not the ultimate arbiter of that issue. It may well be that someone will challenge any amendment of the plan under Zimmerman in state court. (Such a claim would, however, become moot should the plan be found to be legally deficient.)
Fourth, the Republicans have announced that they do not intend to change the plan. I understand the rationale. Even if they could satisfy the demands of some of the plaintiffs (and they probably couldn't), others might sue.
But could they have - and should they have - changed a plan in a way that would have resolved the case.
There seem to be two issues. One is that there are presumably "too many" voters who have been moved to a new district in a way that causes them to have to wait an extra two years to vote for a Senator. This happens when voters are moved between odd numbered and even numbered districts (which is all the time). Depending on which group was up during the last time the old maps were used, some of these voters will wind up having to wait six years to vote for a Senator. To use s simple example, imagine that I lived in District 1 and have been moved to District 2. Assume a plan has gone into effect and that even numbered districts voted in 2010. I last voted for the state senate in 2008. I won't be able to do so again until 2014.
Courts have recognized that this is an inevitable feature of redistricting and have rejected claims that this is unconstitutional disenfranchisement. The reasoning is that the need to defer to state legislatures and to redistrict outweighs the harm from any temporary disenfranchisement,.
A 1983 case from Wisconsin, Republican Party v. Elections Board , did invalidate a plan on that basis. But it is not particularly helpful here because that case seems to have turned on the fact that voters were "deferred" as a result of a plan adopted after a constitutionally valid plan was already in place. The court expressly stated that, had the same plan been adopted in the first instance, it would have been upheld yet because the plan moved voters from even to odd districts it still would have in voters having to wait six years.
So the argument has to be that there are "too many" voters who have to wait an extra two years. But how one could go about deciding how many deferred voters is "too many" is hard to imagine. One could, I suppose, adopt a rule that a new plan must deviate as little as possible from an old plan but there is absolutely no legal support for that. The old plan does not occupy a position of privilege.
If a partisan gerrymander is effectively nonjusticiable, I can't imagine how this could be.The theory seems to be that the burden of proof should be shifted and the legislature should be required to explain why they did what they did. My guess is that the legislature will be able to offer some justification, but the problem is that redistricting is a zero sum game in which any particular decision is a product of many other decisions. There are literally hundreds of options and all will have various strengths and weaknesses. The various criteria by which a plan might be considered "strong" or "weak" are multiple and often contradictory. There is no real way to choose among them and this is why allegations of partisan gerrymanders have, one way or another, been nonstarters.
The other issue is whether one should have created a different Hispanic majority district on the south side of Milwaukee under sec. 2 of the Voting Rights Act. This has to do with whether or not a relatively small number of voters should have been moved from one district to another and which of a number of alternatives - which were negotiated with various Hispanic groups - should have been adopted. **
The law on this is complicated - even convoluted. One must show that a 1) a minority group is sufficiently large and geographically compact to comprise a majority of the district; 2) the minority group is politically cohesive (it must demonstrate a pattern of voting for the same candidates); and, 3) white voters vote sufficiently as a bloc usually to defeat the minority group’s preferred candidate. But even then, it must be determined that, under a totality of the circumstances, the failure to create a majority minority district deprives minority voters an opportunity to elect candidates of their choice.
As a general matter, Republicans love to create majority minority voters. It involves packing Democratic voters which is a time honored way of drawing a favorable map, Here there were a number of alternatives discussed with Hispanic groups and, from the perspective of wanting to maximize Hispanic political influence, there were reasonable arguments to be made in favor of all of them. In fact, one Hispanic group has already announced that they would sue if the legislature departed from the current map.
This is a small part of the plan and doing what the plaintiffs want would do little or nothing to change the plan's acceptability to Democrats and Republicans. It's not at all clear to me that justice - or even the interests of Hispanics - would be served by giving Voces the south side district that it wants. To be sure any change to a map has ripple effects, but a change here wouldn't hurt Republicans much or do much for Democrats. A case could have been made that redrawing the plan to give Voces what it wants would be the better part of valor and would not cede much legislative prerogative.
But that's not what happened so here we go. Comments are on but posts that do nothing but call names or make personal attacks will be removed. I am interested in substantive responses only. No one cares about your snark.
*UPDATE: I have now read portions of Jim Troupis' deposition which was taken last night. While Jim was apparently not involved with nondisclosure agreements (or discovery in the litigation), he offers a trenchant explanation of why maps need to be held close to the vest - even from members of the majority caucus - in order to get them done. NDAs may be bad atmospherically and, as I say, might not be enforceable, but having the whole caucus - much less the whole legislature - in the process of drafting maps would be, he says, like "herding cats." Jim offers a quite cogent explanation of the process and why it was conducted in the way it was.It won't convince the rabidly partisan, but if you have questions about the process, you should read the transcript. It's quite instructive and undercuts much of the false outrage.
**UPDATE: Today's paper breathlessly reports the testimony of a UW Political Science Professor that more voters were moved "than needed." To say that something was more than necessary requires the establishment of a standard by which "need" can be measured. Moving as few people as possible could be a standard but it's not one that is legally privileged or a constitutional reguirement for redistricting.
Monday, February 20, 2012
The Final Word (for now)
With this post, I said that there was one more point to be made (for now) about the John Doe proceeding. Suggestions have been made that the mere presence of things like cell phones and laptops were glaring evidence of wrongdoing.
Not so easy.
My consistent view has been that an absolute prohibition on politics in a government office by political appointees is unworkable and that criminalization of such a activities raises profound due process concerns as the Supreme Court's split decisions in the Caucus cases (Crooks and Roggensack, JJ. shared my concern) demonstrate.
There are some things - but not as much as you'd suppose - that the law clearly prohibits, i.e., fundraising from government offices. I have some questions about charging this as a felony but zi agree that the activity is just not permitted.
After that, there are two categories of potentially "political" activity. One category, explored here, would be activities where politics and policy are inextricably intertwined. I would think that such activity is part of the activity of a government agency and should be conducted with government facilities. No should be accused of wrongdoing but any documents created ought to be subject to the open records law.
I can imagine that some public officials might think that this activity is "too political" to be conducted on government computers but I think that is wrong. I would object to the use of personal phones and computers for this category of activities not because it is intrinsically wrong, but because it risks - and might be improperly intended - to place any documents created outside the scope of the open records law.
This does not mean that personal phones or laptops are wrong. It just raises questions about how they are used.
The second category would be activities that are clearly and completely political. It may be that such activity should never take place during traditional work hours using government computers. But, at least in my view, that is a personnel and not a criminal issue.
And, for certain appointees, it may not even be much of a personnel issue. Any public official who is running for re-election is likely to have key appointees working on that campaign. These people generally work long hours and it may well be that they must attend to political matters during normal business hours. Conducting that business on nongovernmental computers might be seen as a reasonable accommodation of their dual roles. So someone in Mayor Barrett's office who must take a call or send an e-mail on political business and who does it on a nongovernmental cell phone or lap top is not doing anything wrong.
With this category of activity, the question becomes how much time is being spent on political as opposed to governmental business. If someone is never doing the taxpayer's work but just working on politics, we have a problem.
But, even here, we have a certain schizophrenia. We allow - indeed we have a tradition of permitting - public officals to spend much of their time - while they are presumably working full time for the taxpayers - to run for office. Does anyone really think that, during campaign season, Sens. Clinton, Edwards, Kerry, McCain or Govs. Perry or Palin spent much time on official business?
There are reasons to treat elected officials different than staffers. It would be troublesome, on a number of grounds, to treat elected officials in a way that made it difficult for them to run for re-election or another office. There is, in any event, a remedy at the polls.
There is not the same concern with respect to staffers and not the same remedy. But maybe we don't to slice the loaf too thinly. In the end, we may find that a strict separation of policy and politics doesn't work at all levels.
How does this apply to Scott Walker and the John Doe?
Well, I don't know since there is not a hint that Scott Walker has done anything that could conceivably be the basis for an allegation of wrongdoing. If there ever is, we'll see. I'm just setting forth some general ideas now.
Not so easy.
My consistent view has been that an absolute prohibition on politics in a government office by political appointees is unworkable and that criminalization of such a activities raises profound due process concerns as the Supreme Court's split decisions in the Caucus cases (Crooks and Roggensack, JJ. shared my concern) demonstrate.
There are some things - but not as much as you'd suppose - that the law clearly prohibits, i.e., fundraising from government offices. I have some questions about charging this as a felony but zi agree that the activity is just not permitted.
After that, there are two categories of potentially "political" activity. One category, explored here, would be activities where politics and policy are inextricably intertwined. I would think that such activity is part of the activity of a government agency and should be conducted with government facilities. No should be accused of wrongdoing but any documents created ought to be subject to the open records law.
I can imagine that some public officials might think that this activity is "too political" to be conducted on government computers but I think that is wrong. I would object to the use of personal phones and computers for this category of activities not because it is intrinsically wrong, but because it risks - and might be improperly intended - to place any documents created outside the scope of the open records law.
This does not mean that personal phones or laptops are wrong. It just raises questions about how they are used.
The second category would be activities that are clearly and completely political. It may be that such activity should never take place during traditional work hours using government computers. But, at least in my view, that is a personnel and not a criminal issue.
And, for certain appointees, it may not even be much of a personnel issue. Any public official who is running for re-election is likely to have key appointees working on that campaign. These people generally work long hours and it may well be that they must attend to political matters during normal business hours. Conducting that business on nongovernmental computers might be seen as a reasonable accommodation of their dual roles. So someone in Mayor Barrett's office who must take a call or send an e-mail on political business and who does it on a nongovernmental cell phone or lap top is not doing anything wrong.
With this category of activity, the question becomes how much time is being spent on political as opposed to governmental business. If someone is never doing the taxpayer's work but just working on politics, we have a problem.
But, even here, we have a certain schizophrenia. We allow - indeed we have a tradition of permitting - public officals to spend much of their time - while they are presumably working full time for the taxpayers - to run for office. Does anyone really think that, during campaign season, Sens. Clinton, Edwards, Kerry, McCain or Govs. Perry or Palin spent much time on official business?
There are reasons to treat elected officials different than staffers. It would be troublesome, on a number of grounds, to treat elected officials in a way that made it difficult for them to run for re-election or another office. There is, in any event, a remedy at the polls.
There is not the same concern with respect to staffers and not the same remedy. But maybe we don't to slice the loaf too thinly. In the end, we may find that a strict separation of policy and politics doesn't work at all levels.
How does this apply to Scott Walker and the John Doe?
Well, I don't know since there is not a hint that Scott Walker has done anything that could conceivably be the basis for an allegation of wrongdoing. If there ever is, we'll see. I'm just setting forth some general ideas now.
Friday, February 17, 2012
A Point of Personal Privilege
A couple of Madison media outlets have reported on an e-mail that Jim Troupis sent to some of his clients regarding my testimony before a legislative committee. The e-mail says that I had agreed to testify "in support of" the plan but that I needed to see the maps and some other data. Certain commenters here have suggested that I must have agreed to support the plan before I knew what was in the plan. Sort of like Nancy Pelosi.
Why anyone cares about my testimony is beyond me, but, since it's out there, I'll respond.
The implication is that I somehow promised to say that the plan would not be vulnerable to legal challenge no matter what. There's not a shred of evidence of that and it's untrue. Here's why.
First, such an accusation places a lot of a freight on one little e-mail. Of course, Jim Troupis was going to ask people to support his client's position. That's what lawyers do. His e-mail was intended to request the additional information that I needed in order to form an opinion and testify. It wasn't intended as a thorough exegesis of my position (which he didn't really know) or to reflect a guarantee that I'd support the legality of plan no matter what. Jim was saying what any lawyer who gets someone to testify says. "This guy is willing to support us but he needs to see what we did." It is implicit that, if what "we did" does not warrant support, support won't be forthcoming.
Of course, I expected that Jim would draw a legally sound plan. He's one of the best redistricting lawyers in the country. But I wouldn't have hesitated to say there was problem if I saw one.
Second, if the issue is what I agreed to do, then one ought to look at what I said. The e-mails that I sent or received were produced earlier in the litigation and are a matter of public record.
On June 29, Jim e-mailed me and said that the maps had been completed and met certain criteria -"substantially equal population, compact/contiguous and sensitivity to minority interests.". He asked if I would be willing to testify to that effect and offered to get me whatever I needed to look at. Just what I had or hadn't seen at that time, I don't know. I don't recall when the maps became publicly available.
I responded the next day. Referring to his "criteria," I told him that "[i}t's not hard to bless it on the first two with respect to federal review." That is because the districts would certainly be substantially equal in population (and they were) and there is, strictly speaking, no judicially enforceable constitutional requirement of contiguity and compactness (although they may be considered in connection with the evaluation of other claims).
In my view, challenges to maps as a partisan gerrymander are, under a proper reading of the law, practically impossible. I said nothing about state constitutional review (which could be a different matter although it won't be an issue in the upcoming federal litigation) and did not say anything about "sensitivity to minority interests" at that time.
I asked for more information. I received it. I went ahead with my testimony.
Third, the views that I expressed before the committee regarding the difficulty of ever challenging a district as a partisan gerrymander are not new and were not contingent on who wrote the plan.
Here's how you can be sure.
I said the same thing on Marquette's faculty blog in February of 2010 and in the Journal Sentinel in October of 2010 - back when the Democrats had the Governor's chair and both houses of the legislature and before we knew which party would be in control when the maps were drawn. My point was that, if one party sweeps the election, the legislature is pretty much going to be able to draw the map it wants.
Maybe I'm wrong. But I am consistent.
Fourth, in case you're wondering, I was not paid for this. I received nothing. No compenation. No mileage. No parking. Nothing.
As an aside, one aspect of the e-mails released yesterday is interesting. They reveal that, notwithstanding Peter Earle's histrionics, the Republicans were in active negotiations with representatives of the Hispanic community regarding the creation of majority Hispanic districts.
That the maps were shared with Scott Jensen a few days before they were made public is not interesting. There is no prohibition against showing people drafts of legislation that have not yet been introduced and it's not at all surprising that legislators would try to line up support. It happens all the time.
Finally, I'm closing comments on this. I understand that there all sorts of (generally anonymous) people in the blogosphere who seem to fill some psychic need by flaming people who disagree with them. They can do it elsewhere.
Why anyone cares about my testimony is beyond me, but, since it's out there, I'll respond.
The implication is that I somehow promised to say that the plan would not be vulnerable to legal challenge no matter what. There's not a shred of evidence of that and it's untrue. Here's why.
First, such an accusation places a lot of a freight on one little e-mail. Of course, Jim Troupis was going to ask people to support his client's position. That's what lawyers do. His e-mail was intended to request the additional information that I needed in order to form an opinion and testify. It wasn't intended as a thorough exegesis of my position (which he didn't really know) or to reflect a guarantee that I'd support the legality of plan no matter what. Jim was saying what any lawyer who gets someone to testify says. "This guy is willing to support us but he needs to see what we did." It is implicit that, if what "we did" does not warrant support, support won't be forthcoming.
Of course, I expected that Jim would draw a legally sound plan. He's one of the best redistricting lawyers in the country. But I wouldn't have hesitated to say there was problem if I saw one.
Second, if the issue is what I agreed to do, then one ought to look at what I said. The e-mails that I sent or received were produced earlier in the litigation and are a matter of public record.
On June 29, Jim e-mailed me and said that the maps had been completed and met certain criteria -"substantially equal population, compact/contiguous and sensitivity to minority interests.". He asked if I would be willing to testify to that effect and offered to get me whatever I needed to look at. Just what I had or hadn't seen at that time, I don't know. I don't recall when the maps became publicly available.
I responded the next day. Referring to his "criteria," I told him that "[i}t's not hard to bless it on the first two with respect to federal review." That is because the districts would certainly be substantially equal in population (and they were) and there is, strictly speaking, no judicially enforceable constitutional requirement of contiguity and compactness (although they may be considered in connection with the evaluation of other claims).
In my view, challenges to maps as a partisan gerrymander are, under a proper reading of the law, practically impossible. I said nothing about state constitutional review (which could be a different matter although it won't be an issue in the upcoming federal litigation) and did not say anything about "sensitivity to minority interests" at that time.
I asked for more information. I received it. I went ahead with my testimony.
Third, the views that I expressed before the committee regarding the difficulty of ever challenging a district as a partisan gerrymander are not new and were not contingent on who wrote the plan.
Here's how you can be sure.
I said the same thing on Marquette's faculty blog in February of 2010 and in the Journal Sentinel in October of 2010 - back when the Democrats had the Governor's chair and both houses of the legislature and before we knew which party would be in control when the maps were drawn. My point was that, if one party sweeps the election, the legislature is pretty much going to be able to draw the map it wants.
Maybe I'm wrong. But I am consistent.
Fourth, in case you're wondering, I was not paid for this. I received nothing. No compenation. No mileage. No parking. Nothing.
As an aside, one aspect of the e-mails released yesterday is interesting. They reveal that, notwithstanding Peter Earle's histrionics, the Republicans were in active negotiations with representatives of the Hispanic community regarding the creation of majority Hispanic districts.
That the maps were shared with Scott Jensen a few days before they were made public is not interesting. There is no prohibition against showing people drafts of legislation that have not yet been introduced and it's not at all surprising that legislators would try to line up support. It happens all the time.
Finally, I'm closing comments on this. I understand that there all sorts of (generally anonymous) people in the blogosphere who seem to fill some psychic need by flaming people who disagree with them. They can do it elsewhere.
Thursday, February 16, 2012
The Westminster Dog Show and the United Nations
OK, stay with me here. One of the things that I believe is illustrated by the UN is the difficulty of having a funtioning polity without a critical mass of commonly held assumptions about the nature of human beings and their relationship to the state and to each other.This is, I think, one of the principle arguments against the International Criminal Court and other more ambitious manifestations of supranationalism.
We saw what this lack of common understanding can lead to this week at Madison Square Garden.
The "Best in Show" award could have gone to this magnificent animal.
Or this one.
This dog could have won.
This one should have won.
But the winner was .....
this thing.
I'm sorry. But if you even think that's a dog, we can't live in the same country.
We saw what this lack of common understanding can lead to this week at Madison Square Garden.
The "Best in Show" award could have gone to this magnificent animal.
Tuesday, February 14, 2012
If you clear it, will they come?
With all respect, that's not any type of argument for doing it. If the private sector would do it, there would be no need to even think about using tax dollars. It is, at best, a necessary condition for consideration of the city's plan, but it's hardly sufficient.
Here is what is missing.
Why won't the private sector do it?
After all, $ 35 million is hardly beyond the capacity of private financiers. Ironically, the editorial board hits the nail on the head when it admits that it would "like to have a better idea of how this development fits into a comprehensive economic development strategy for Milwaukee" and that it remains to be seen " how to persuade businesses that returning to Milwaukee's central city is a good move."
This is a little like saying that my budget for next year is complete. Now I just have to figure out how to get some money.
Of course, neither the paper nor the city want to say that there is nothing that can be done to re-vitalize a huge expanse of land that looks like the set for "Escape from New York." Certainly, we can - we must - do something that can help. But wishing it were so does not make it so. It's not as if there are no reasons to think that the area might not be an appropriate site for economic development, but the City's current plan passes a distressing resemblance to an episode of South Park.
Of course, I'm having fun and it may be that the project turns out to be the right thing. In fact, I sincerely hope it does. There may well be circumstances in which private money turns out to be necessary to unlock development and, while I think those circumstances are wildly overstated both by public officials and developers hankering for taxpayer largesse, it is possible that this is one of them.
But what planners hope will turn out to be another Menomonee Valley could end up as a second Park East corridor.
Would it be better to wait until there are some committed users for the site rather than clearing it on spec. the result may be a long, slow process of attracting small and marginal users. Perhaps that's the best use of the money. But shouldn't that possibility - perhaps even that likelihood - be acknowledged?
Same as it ever was?
There is some interesting stuff in the Winter 2012 issue of National Affairs. One of the President's re-election gambits is to tell a story about an America that once was in which middle class people have far more than they do. It is sometimes buttressed by selective uses of statistics but mostly simply asserted.
I find it a curious claim because I was, of course, present in that distance past and, as far as I can tell, teachers, cops, firefighters, nurses and other so called "mid level" workers don't seem to enjoy a lower standards of living that we did back then. In fact, their homes are bigger, their cars are better (and they generally have two; we never did), and the houses are full of lots of gadgets that we never could have dreamed of. It does seem to be true that there is a greater need to learn a skill - you can't do as well by low skill work at a factory - but people seem to be acquiring those skills. To be sure, the recent economic downturn was bad but it would be a mistake to suggest that it characterizes the recent past or that it was different in kind from post-Great Depression downturns. By some measures, it was the worst but not by such a margin to suggest some fundamental change in the nature of the economy. Indeed, it's worst aspect may prove to be the boom and bust in housing prices which have proven to be devastating to those who either bought or leveraged at the wrong time.
Scott Winship of the Brookings Institute looks at the numbers. He finds that average Americans today do not face a materially greater risk of income reduction, unemployment, loss of health insurance or retirement insecurity than they did in the past. To be sure, there are ways in which the economy has changed for the worse (and for the better) but the dire tale told by the President turns out to be wrong.
In the same issue, Ryan Messmore looks at the issue of income inequality finding that inequality among income quintiles is less than commonly supposed (when one takes into account things such as all sources of income and the size of households) and cites the work of Cornell University economists who have found that the rise in income inequality has actually been slower over the past twenty years than in the twenty year period before that.
I don't claim that these two articles end the debate but they track a lot of other stuff that I read and are worth taking a look at.
This may be why we see so much emphasis on "the 1%) (of which, in case you were wondering, I am not a member). They have done much better over the recent past although their share on the national income dropped precipitously from 2007 to 2009 without making anyone else noticeably better off.
This is something of a parlor trick. As well as those fortunate few have done, we can't expect to close the deficit or make anyone else materially better off by taking their stuff. Perhaps we should let the Bush tax cuts expire for people over a certain limit, end the capital gains treatment for carried interest for a handful of hedge fund managers or impose an alternative minimum tax (now that has a great history!) on people who report too much tax advantaged income.
But it will hardly make the world anew or even be much reason to prefer Barack Obama over Romney or Santorum.
I find it a curious claim because I was, of course, present in that distance past and, as far as I can tell, teachers, cops, firefighters, nurses and other so called "mid level" workers don't seem to enjoy a lower standards of living that we did back then. In fact, their homes are bigger, their cars are better (and they generally have two; we never did), and the houses are full of lots of gadgets that we never could have dreamed of. It does seem to be true that there is a greater need to learn a skill - you can't do as well by low skill work at a factory - but people seem to be acquiring those skills. To be sure, the recent economic downturn was bad but it would be a mistake to suggest that it characterizes the recent past or that it was different in kind from post-Great Depression downturns. By some measures, it was the worst but not by such a margin to suggest some fundamental change in the nature of the economy. Indeed, it's worst aspect may prove to be the boom and bust in housing prices which have proven to be devastating to those who either bought or leveraged at the wrong time.
Scott Winship of the Brookings Institute looks at the numbers. He finds that average Americans today do not face a materially greater risk of income reduction, unemployment, loss of health insurance or retirement insecurity than they did in the past. To be sure, there are ways in which the economy has changed for the worse (and for the better) but the dire tale told by the President turns out to be wrong.
In the same issue, Ryan Messmore looks at the issue of income inequality finding that inequality among income quintiles is less than commonly supposed (when one takes into account things such as all sources of income and the size of households) and cites the work of Cornell University economists who have found that the rise in income inequality has actually been slower over the past twenty years than in the twenty year period before that.
I don't claim that these two articles end the debate but they track a lot of other stuff that I read and are worth taking a look at.
This may be why we see so much emphasis on "the 1%) (of which, in case you were wondering, I am not a member). They have done much better over the recent past although their share on the national income dropped precipitously from 2007 to 2009 without making anyone else noticeably better off.
This is something of a parlor trick. As well as those fortunate few have done, we can't expect to close the deficit or make anyone else materially better off by taking their stuff. Perhaps we should let the Bush tax cuts expire for people over a certain limit, end the capital gains treatment for carried interest for a handful of hedge fund managers or impose an alternative minimum tax (now that has a great history!) on people who report too much tax advantaged income.
But it will hardly make the world anew or even be much reason to prefer Barack Obama over Romney or Santorum.
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