Tuesday, May 31, 2011
More on Ozanne
My further remarks on Judge Sumi's decision and response to Ed Fallone can be found at the Marquette University Law School Faculty Blog.
Thursday, May 26, 2011
One Reason Why Ozanne is Wrong Decided
It should as no surprise to anyone that I disagree with Judge Sumi's decision in Ozanne v. Fitzgerald for all of the reasons that I have given here and elsewhere. The outcome was predictable but there is at least one part of the opinion that is notably odd.
Judge Sumi writes that "the Supreme Court's decision in Milwaukee Journal Sentinel v. Dept of Administration, 2009 WI 79, answers the precise question raised in this case, whether and under what circumstances a court may bvoid a legislative act for failure to abide by a statutory directive." The case involved legislative ratification of a collective bargaining agreement that, by it terms, prohibited the release of information of certain information regarding public employees that would otherwise be required to be released by the open records law. An existing statutory provision said that the open records law could not be amended by the adoption of a collective bargaining but only be a separately introduced bill. The question was whether adoption of the agreement did in fact modify the open records law so that the subShe goes on to elliptically describe Milwaukee Journal Sentinel saying that, in that case, the Court "went on to invalidate 2003 Wisconsin Act 319 adopting the collective bargaining agreement and amending the Public Records Law."
No, it did not. The collective bargaining agreement remained in force. All the Court did was decided that it did not have the effect of amending - sub silentio - the collective bargaining law. You can read the majority opinion as many times as you want and you will never find any language or mandate that would invalidate all of any part of the act.
A midnight blue friend argues that, well it's as if they did because they refused to give effect to that part of the Act which "purported to" amend the Public Records law, citing (because that's the kind of thing he does), the latin maxim pro tantum brutem fulmen. But the problem in Milwaukee Journal Sentinel was that the Act in question did not purport to amend anything. The argument was made that it did so inferentially by adopting the agreemen. The court concluded that the Act - fully valid - had no such fact, relying on a constitutional requirements for the passage of legislation and reading the statute in question to be, at least for relevant purposes, a legislative statement in compliance with (i.e., restating) those requirements. The Court expressly disavowed any suggestion that it was acting due to a mere failure to comply with a statutel
In fact, the Court's analysis was intitially constitutional. The act was not a bill amending the public records law under Article IV, sec. 17 of the Constitution. Only after it reached that conclusion did it consider 111.92(a)(1) which it interpreted to be consistent with the Constitution, i.e., it did not provide for the amendment of laws in some way other than that specified by the Constitution.
Judge Sumi could have said that the two hour notice provision adopted by the open meetings law was constitutionally mandated, but she did not - for at least two reasons. First, the Dane County District Attorney would seem to lack standing to attack the constitutionality of the collective bargaining bill and the claim would be without merit. The Open Meetings law expressly states that the legislature may exempt itself from its requirements (by the mere adoption of a rule) belying any suggestion that even the legislature that passed the bill thought that it enacted constitutional requirements. (And, of course, even had the enacting legislature thought so, it's view could not bind subsequent legislatures.)
It is quite a stretch to say that a constitutional requirement that the legislature's proceedings be open to the public requires some particular period of notice and room requirements. To say so would be without precedent and would fly in the face of 150 years of practice.
Here's an interesting coda. Chief Justice Abrahamson dissented in Milwaukee Journal Sentinel for reasons that would make it very hard to vote to uphold the circuit court's decision here. It is completely possible that this decision gets one or no votes of support on the state Supreme Court.
There are a host of other problems as well. But it is not clear that this or any of them will ever be reached by the Court. As I understand it, the collective bargaining bill must be in effect for the budget to work. The budget must be passed by the end of June. There may now be no choice but to reenact it.
Judge Sumi writes that "the Supreme Court's decision in Milwaukee Journal Sentinel v. Dept of Administration, 2009 WI 79, answers the precise question raised in this case, whether and under what circumstances a court may bvoid a legislative act for failure to abide by a statutory directive." The case involved legislative ratification of a collective bargaining agreement that, by it terms, prohibited the release of information of certain information regarding public employees that would otherwise be required to be released by the open records law. An existing statutory provision said that the open records law could not be amended by the adoption of a collective bargaining but only be a separately introduced bill. The question was whether adoption of the agreement did in fact modify the open records law so that the subShe goes on to elliptically describe Milwaukee Journal Sentinel saying that, in that case, the Court "went on to invalidate 2003 Wisconsin Act 319 adopting the collective bargaining agreement and amending the Public Records Law."
No, it did not. The collective bargaining agreement remained in force. All the Court did was decided that it did not have the effect of amending - sub silentio - the collective bargaining law. You can read the majority opinion as many times as you want and you will never find any language or mandate that would invalidate all of any part of the act.
A midnight blue friend argues that, well it's as if they did because they refused to give effect to that part of the Act which "purported to" amend the Public Records law, citing (because that's the kind of thing he does), the latin maxim pro tantum brutem fulmen. But the problem in Milwaukee Journal Sentinel was that the Act in question did not purport to amend anything. The argument was made that it did so inferentially by adopting the agreemen. The court concluded that the Act - fully valid - had no such fact, relying on a constitutional requirements for the passage of legislation and reading the statute in question to be, at least for relevant purposes, a legislative statement in compliance with (i.e., restating) those requirements. The Court expressly disavowed any suggestion that it was acting due to a mere failure to comply with a statutel
In fact, the Court's analysis was intitially constitutional. The act was not a bill amending the public records law under Article IV, sec. 17 of the Constitution. Only after it reached that conclusion did it consider 111.92(a)(1) which it interpreted to be consistent with the Constitution, i.e., it did not provide for the amendment of laws in some way other than that specified by the Constitution.
Judge Sumi could have said that the two hour notice provision adopted by the open meetings law was constitutionally mandated, but she did not - for at least two reasons. First, the Dane County District Attorney would seem to lack standing to attack the constitutionality of the collective bargaining bill and the claim would be without merit. The Open Meetings law expressly states that the legislature may exempt itself from its requirements (by the mere adoption of a rule) belying any suggestion that even the legislature that passed the bill thought that it enacted constitutional requirements. (And, of course, even had the enacting legislature thought so, it's view could not bind subsequent legislatures.)
It is quite a stretch to say that a constitutional requirement that the legislature's proceedings be open to the public requires some particular period of notice and room requirements. To say so would be without precedent and would fly in the face of 150 years of practice.
Here's an interesting coda. Chief Justice Abrahamson dissented in Milwaukee Journal Sentinel for reasons that would make it very hard to vote to uphold the circuit court's decision here. It is completely possible that this decision gets one or no votes of support on the state Supreme Court.
There are a host of other problems as well. But it is not clear that this or any of them will ever be reached by the Court. As I understand it, the collective bargaining bill must be in effect for the budget to work. The budget must be passed by the end of June. There may now be no choice but to reenact it.
Tuesday, May 24, 2011
Unrestricted Concealed Carry is a Bad Idea
I support concealed carry but the notion that it ought to be extended without the requirement of a license and training is to carry a sound principle too far. Let's compare, of all things, the recently passed voter ID bill. People have a constitutional right to vote. But that doesn't mean that the state may not place reasonable regulations on the manner in which that right is exercised to protect the rights of others.
To be sure, the restrictions normally placed on concealed carry may be more onerous than simply requiring a photo ID but the state interests justify them. It would be a different matter if the registration and training requirements were used to frustrate concealed carry rights but sufficient unto the day is the evil thereof.
To be sure, the restrictions normally placed on concealed carry may be more onerous than simply requiring a photo ID but the state interests justify them. It would be a different matter if the registration and training requirements were used to frustrate concealed carry rights but sufficient unto the day is the evil thereof.
Friday, May 20, 2011
Shark on Dead Tree
My Journal Sentinel op-ed on the recount is here. I understand the Kloppenburg campaign has been claiming that I "work for" Prosser. Not true. I have nothing to do with the Prosser campaign or the recount effort. I was asked to get involved in the latter and declined.
Sunday, May 15, 2011
Capitol Security
It appears that the trip down memory lane that gripped the state Capitol for a month or so did cost north of 7.5 million dollars, although not as a result of damage.
I am struck, though, by the Democrats' suggestion that the GOP has placed the Capitol in some type of security lockdown. I have had meetings at the Capitol twice in the past month or so. It is no harder to get into the Capitol than it is to enter the federal or county courthouses in Milwaukee.
I am struck, though, by the Democrats' suggestion that the GOP has placed the Capitol in some type of security lockdown. I have had meetings at the Capitol twice in the past month or so. It is no harder to get into the Capitol than it is to enter the federal or county courthouses in Milwaukee.
A Sunday in May?
Hard to tell by stepping outside today.
The cold wind blows. The Gods look down in anger.
If these guys would have been from Wisconsin, they would have to have started this song two months later.
And this guy would have had to wait a month. Or at least he could have.
The cold wind blows. The Gods look down in anger.
If these guys would have been from Wisconsin, they would have to have started this song two months later.
And this guy would have had to wait a month. Or at least he could have.
Recount Follies Continue
As our Supreme Court recount sloshes on, there is absolutely no chance that counting of the ballots will change the result. Moving forward seems to be more about exciting the base, sustaining anger and raising money. I understand how hard it must be to let go, but we passed the point of tolerance long ago. Even if Ms. Kloppenburg somehow feels obligated to move forward, she should cut out the empty insinuations.
Of course, she may be contemplating asking a court to throw out thousands and thousands of votes in Waukesha County. I can't believe that she would have the temerity to do it or that it would have the slightest chance of success. And, if she were to win, the victory - both for her and the left in this state - would by pyhrric. If this is actually being contemplated, it is a spectacularly stupid idea. Let's hope that there are grown ups in the Kloppenburg camp.
Why is it such a bad idea? Why can't it succeed. Let's start with the latter. If the problem is bags that are not properly cinched, there are all sorts of ways to assure oneself that they were not tampered with including examination of the chain of custody and comparison of what is in those bags now with what was counted on election night. Beyond that throwing out bags of ballots in Waukesha because they are not completely cinched, raises a serious constitutional challenge. Note that this constitutional problem exists whether or not the Prosser campaign "could have" made similar objections in other counties. It is a denial of the rights of the voters in Waukesha County no matter what the Prosser campaign did or do not do.
Here's why - or at least one reason why. In her public comments, Joanne Kloppenburg has suggested that the ballot bags in Waukesha were unusual. They are not. Such bags existed in Milwaukee County but were not remarked upon until the last day. They undoubtedly exist throughout the state. If the Kloppenburg now suggests that the ballots in these bags be tossed in Waukesha - and only Waukesha - it would require counting votes in Waukesha in a materially different way than the way they were counted in other counties.
This presents an equal protection problem pursuant to the United States Supreme Court's teaching in ... Bush v. Gore.
Looks like that case may have had legs after all.
Why is it a bad idea? Let's suspend disbelief and imagine that the Court of Appeals in Dane County would buy such a challenge - something that I don't regard as likely. Let's further assume that, with Justice Prosser recused, the "liberal" wing of the state Supreme Court would buy it and that the Court would split 3-3 allowing the Court of Appeals decision to stand. (I regard that as even more unlikely.) Let's further assume that the United States Supreme Court allows the theft of an election to stand by denying cert. (This is also unlikely.)
Whatever momentum the left has in Wisconsin would be gone. The anger on the right would make Madison's recent Days of Rage look like a picnic. No Democrat would win a recall and Obama will be an immediate underdog in Wisconsin. You can't toss out legitmately cast votes and not pay a huge price.
Of course, she may be contemplating asking a court to throw out thousands and thousands of votes in Waukesha County. I can't believe that she would have the temerity to do it or that it would have the slightest chance of success. And, if she were to win, the victory - both for her and the left in this state - would by pyhrric. If this is actually being contemplated, it is a spectacularly stupid idea. Let's hope that there are grown ups in the Kloppenburg camp.
Why is it such a bad idea? Why can't it succeed. Let's start with the latter. If the problem is bags that are not properly cinched, there are all sorts of ways to assure oneself that they were not tampered with including examination of the chain of custody and comparison of what is in those bags now with what was counted on election night. Beyond that throwing out bags of ballots in Waukesha because they are not completely cinched, raises a serious constitutional challenge. Note that this constitutional problem exists whether or not the Prosser campaign "could have" made similar objections in other counties. It is a denial of the rights of the voters in Waukesha County no matter what the Prosser campaign did or do not do.
Here's why - or at least one reason why. In her public comments, Joanne Kloppenburg has suggested that the ballot bags in Waukesha were unusual. They are not. Such bags existed in Milwaukee County but were not remarked upon until the last day. They undoubtedly exist throughout the state. If the Kloppenburg now suggests that the ballots in these bags be tossed in Waukesha - and only Waukesha - it would require counting votes in Waukesha in a materially different way than the way they were counted in other counties.
This presents an equal protection problem pursuant to the United States Supreme Court's teaching in ... Bush v. Gore.
Looks like that case may have had legs after all.
Why is it a bad idea? Let's suspend disbelief and imagine that the Court of Appeals in Dane County would buy such a challenge - something that I don't regard as likely. Let's further assume that, with Justice Prosser recused, the "liberal" wing of the state Supreme Court would buy it and that the Court would split 3-3 allowing the Court of Appeals decision to stand. (I regard that as even more unlikely.) Let's further assume that the United States Supreme Court allows the theft of an election to stand by denying cert. (This is also unlikely.)
Whatever momentum the left has in Wisconsin would be gone. The anger on the right would make Madison's recent Days of Rage look like a picnic. No Democrat would win a recall and Obama will be an immediate underdog in Wisconsin. You can't toss out legitmately cast votes and not pay a huge price.
Friday, May 06, 2011
A Reverse Gore
In 2000, Al Gore's gambit in Florida was to put the vote in heavily Democratic counties in Florida in order to pick up enough votes to go over the top. Voting technology in Florida was such that it was reasonable to hope that there would be enough spoiled ballots that could be called Democratic to make up what was a very small margin.
That strategy would have no chance of success in the Supreme Court recount. Improved voting technology makes the count far more accurate. To win here, you have to throw out votes and, if you are Joanne Kloppenburg and want to throw out votes, you go to somewhere in which the votes were for your opponent, i.e., Waukesha County.
But she's got another problem. The margin is so large that you can't win through ballot by ballot examination. You need to throw out bags of ballots. Lots of bags. So you look for a flaw - any flaw - that will take the election from the voters and put it in the courts.
The latest seems to be the claim that some ballot bags weren't completely closed such that someone could have taken some out (or put some in) after the fact. But, if the ballots in the bag, correspond to the count and results on election night, it will be pretty clear that no one did.
That strategy would have no chance of success in the Supreme Court recount. Improved voting technology makes the count far more accurate. To win here, you have to throw out votes and, if you are Joanne Kloppenburg and want to throw out votes, you go to somewhere in which the votes were for your opponent, i.e., Waukesha County.
But she's got another problem. The margin is so large that you can't win through ballot by ballot examination. You need to throw out bags of ballots. Lots of bags. So you look for a flaw - any flaw - that will take the election from the voters and put it in the courts.
The latest seems to be the claim that some ballot bags weren't completely closed such that someone could have taken some out (or put some in) after the fact. But, if the ballots in the bag, correspond to the count and results on election night, it will be pretty clear that no one did.
Friday, April 29, 2011
Missing the Point - A Few Examples
One of the fascinating things about our recent contretemps over public employee compensation has been the remarkable lack of self awareness on the part of public employee unions. Two cases in point. Jay Bullock, who I have always thought is a good guy and a smart writer, says that Scott Walker "lies." The jumping off point seems to be an isolated in which Walker said that all he was asking was additional (and rather modest) contributions to their pensions and health insurance.
Not so, says Jay, the budget repair bill eliminates the right of public employee unions to bargain on matters other than compensation. Absolutely true but I don't know that it is fair to say that Walker has "lied" about that. Picking a single statement that is not complete or fully qualified when the peron in question has made many other statements that fully explain the matter at hand is a cheap blogger trick unworthy of Jay. The Governor has explained many times why that is necessary to restrict collective bargaining and how it impacts budgetary issues.
Here's the lack of self awareness part. Jay goes on to demonstrate just why Walker is right. He attempts to illustrate the MTEA contract's breadth by noting that it is 258 pages long. Jay - dude - that's not a refutation of the need for reform. It is proof of the need for reform. No one - and I mean no one - needs a 258 page employment contract. Jay's suggestion that it must be so "to make sure that the best education for our kids is happening at all times" would be laughable if the fact that he apparently believes it wasn't so sad.
All sorts of things get done in this world - supercomputers are built, sattelites are launched and hearts are transplanted - without 258 page employment contracts. In fact, I would argue that, in addition to costing school districts tons of money, this micromanagement of working conditions is one of the reasons that we have seen fifty years of enormous increases in the funding of public education coupled with a general decline in the performance of public schools.
Jay seems to think that things like teacher mentoring programs or procedures for handling assualt on teachers to specifications of the length of the school day will all be eliminated if they aren't in a collective bargaining agreement. Note to Jay: all of these things exist in non-unionized environments. Nonunionized employers do all sorts of things to attract and retain workers and provide services and products that their customers will value. A 258 page contract is not part of the solution; it's part of the problem/
And MichaeL Rosen speculates that Scott Walker wants to raid public employee pension funds. Of course, he can do no such thing. Existing pension funds are legally off limits. This suggests the problem with Rosen's argument that there is no reason to worry about public employee pensions because the state retirement plan is well funded and well managed.
But that only means that the state is currently paying enough into the fund to cover most of the accrued benefits. That's a good thing but has nothing to do with whether the state can afford to continue promising benefits at current levels. It is that question that the Governor proposes to study.
And Rosen ultimately concedes the point although he doesn't recognize it. He concludes by saying that the governor is going to look at public employee pensions because "that's where the money is."
Precisely.
Not so, says Jay, the budget repair bill eliminates the right of public employee unions to bargain on matters other than compensation. Absolutely true but I don't know that it is fair to say that Walker has "lied" about that. Picking a single statement that is not complete or fully qualified when the peron in question has made many other statements that fully explain the matter at hand is a cheap blogger trick unworthy of Jay. The Governor has explained many times why that is necessary to restrict collective bargaining and how it impacts budgetary issues.
Here's the lack of self awareness part. Jay goes on to demonstrate just why Walker is right. He attempts to illustrate the MTEA contract's breadth by noting that it is 258 pages long. Jay - dude - that's not a refutation of the need for reform. It is proof of the need for reform. No one - and I mean no one - needs a 258 page employment contract. Jay's suggestion that it must be so "to make sure that the best education for our kids is happening at all times" would be laughable if the fact that he apparently believes it wasn't so sad.
All sorts of things get done in this world - supercomputers are built, sattelites are launched and hearts are transplanted - without 258 page employment contracts. In fact, I would argue that, in addition to costing school districts tons of money, this micromanagement of working conditions is one of the reasons that we have seen fifty years of enormous increases in the funding of public education coupled with a general decline in the performance of public schools.
Jay seems to think that things like teacher mentoring programs or procedures for handling assualt on teachers to specifications of the length of the school day will all be eliminated if they aren't in a collective bargaining agreement. Note to Jay: all of these things exist in non-unionized environments. Nonunionized employers do all sorts of things to attract and retain workers and provide services and products that their customers will value. A 258 page contract is not part of the solution; it's part of the problem/
And MichaeL Rosen speculates that Scott Walker wants to raid public employee pension funds. Of course, he can do no such thing. Existing pension funds are legally off limits. This suggests the problem with Rosen's argument that there is no reason to worry about public employee pensions because the state retirement plan is well funded and well managed.
But that only means that the state is currently paying enough into the fund to cover most of the accrued benefits. That's a good thing but has nothing to do with whether the state can afford to continue promising benefits at current levels. It is that question that the Governor proposes to study.
And Rosen ultimately concedes the point although he doesn't recognize it. He concludes by saying that the governor is going to look at public employee pensions because "that's where the money is."
Precisely.
Wednesday, April 27, 2011
Assault on the Rule of Law
I thought, for a while, about whether the title of this post was a bit too extreme. My subject is the pressure placed on King & Spalding to drop its representation of the House of Representatives with respect of the Defense of Marriage Act. Gay and lesbian activists pressured the firm in much the same way that the left pressured the local firm of Whyte & Hirshboeck when one of its associates served as local counsel on an amicus brief opposing a procedural challenge to the enactment of the Wisconsin Marriage Amendment.
Unfortunately, it's not too extreme. What happened here is shameful. In succumbing to this pressure, King & Spalding disgraced itself and harmed the profession. In choosing to pressure a law firm for the clients it keeps, the left has taken one more step from the rule of law, civility and an ethos of mutual respect.
There are good reasons to be careful about boycotting or pressuring lawyers for representing unpopular clients. The rule of law applies to the unpopular - even the despised - and one cannot enjoy the protection of the law without a lawyer to secure it.
That's why the title of this post is not extreme.
Unfortunately, it's not too extreme. What happened here is shameful. In succumbing to this pressure, King & Spalding disgraced itself and harmed the profession. In choosing to pressure a law firm for the clients it keeps, the left has taken one more step from the rule of law, civility and an ethos of mutual respect.
There are good reasons to be careful about boycotting or pressuring lawyers for representing unpopular clients. The rule of law applies to the unpopular - even the despised - and one cannot enjoy the protection of the law without a lawyer to secure it.
That's why the title of this post is not extreme.
Sunday, April 24, 2011
Easter Songs
All brought to us by the outstanding young Grace Potter & the Nocturnals. Easter being about hope and resistance.
Faith and doubt.
And hope again.
Faith and doubt.
And hope again.
Wednesday, April 20, 2011
Recount Follies
I'm not going to be too hard on Joanne Kloppenburg for requesting a recount. It's hard to give up something that you have wanted badly, worked hard for and came so close to having - even thinking, albeit rashly and incorrectly, that you had, in fact obtained.
Letting go required facing a very unpleasant reality. It appears she was not up to that. The result will be an expensive tilt at a windmill for the taxpayers (and her donors) and her choice suggests that she may not have the judgment required for the Court. Her references to "suspect" results and the need to restore public integrity were disappointing and her suggestion that there was some need for hand recounts that GAB would request was bizarre. But, then again, we're all human.
I'm not upset about it. It's a colossal waste of money but, in the grand scheme of things, just one more example of that. In fact, recounting Waukesha is probably worth it to shut up the tin foil crowd and the irresponsible politicos among us.
I have less sympathy for those who put her up to it because this is, ultimately, a political act. Democrats are concerned that they will be unable to sustain the anger through the recalls. They believe - probably incorrectly - that this is a way to do it going. Keep the Supreme Court election that proved so useful going and maybe kick up some dust over nothing at all. I have yet to talk to anyone who knows much about these things who thinks that a recount is remotely likely to change the outcome. The reason to ask for one is to not to alter or even confirm the result, but to sustain momentum.
I'm not sure that it works. If it turns out to be the nothing burger than I suspect it will be, it just underscores what is already a bitter defeat. It soaks up money that could presumably have been directed to recalls. It will put the lie - finally - to the Nickolaus conspiracy theories.
On the other hand, I am not a political operative and I assume that some fairly sharp ones on the other side decided that this was worth doing.
Letting go required facing a very unpleasant reality. It appears she was not up to that. The result will be an expensive tilt at a windmill for the taxpayers (and her donors) and her choice suggests that she may not have the judgment required for the Court. Her references to "suspect" results and the need to restore public integrity were disappointing and her suggestion that there was some need for hand recounts that GAB would request was bizarre. But, then again, we're all human.
I'm not upset about it. It's a colossal waste of money but, in the grand scheme of things, just one more example of that. In fact, recounting Waukesha is probably worth it to shut up the tin foil crowd and the irresponsible politicos among us.
I have less sympathy for those who put her up to it because this is, ultimately, a political act. Democrats are concerned that they will be unable to sustain the anger through the recalls. They believe - probably incorrectly - that this is a way to do it going. Keep the Supreme Court election that proved so useful going and maybe kick up some dust over nothing at all. I have yet to talk to anyone who knows much about these things who thinks that a recount is remotely likely to change the outcome. The reason to ask for one is to not to alter or even confirm the result, but to sustain momentum.
I'm not sure that it works. If it turns out to be the nothing burger than I suspect it will be, it just underscores what is already a bitter defeat. It soaks up money that could presumably have been directed to recalls. It will put the lie - finally - to the Nickolaus conspiracy theories.
On the other hand, I am not a political operative and I assume that some fairly sharp ones on the other side decided that this was worth doing.
Sunday, April 17, 2011
Songs for Tax Sunday
We got the 1040 Blues.
Save us save us from this squeeze.
Don't ask them what they want it for.
Everyone's crying for pennies from heaven.
Save us save us from this squeeze.
Don't ask them what they want it for.
Everyone's crying for pennies from heaven.
Monday, April 11, 2011
Election Rumination
In the aftermath of last weeek's Supreme Court vote, observers differed as to whether it reflected a significant Walker backlash. My initial impression was that there is little evidence of that. Having looked closer at the numbers, I still think that's the case although, in the end, a final judgment may require numbers we don't have.
One line of argument is that Kloppenburg and Prosser should never have been close. But all that tells us is that the race was transformed into a partisan referendum. With or without an anti-Walker backlash, a partisan referendum will be close because Wisconsin is a sharply divided state. The fact of the matter is that neither candidate had any significant name recognition going in (very few people know who is on the state supreme court)and, once a judicial election becomes salient (i.e.. people start to pay attention), incumbency isn't the advantage that it might be in other types of races. Up until recently, of course, the races rarely became salient. This one became more salient than most.
One argument looks at differences from the February primary to the April general but that is not all that helpful. Turnout in April was wll over three times what it was in February. It was a completely different electorate in April, i.e.. different people were voting,and there is reason to think that the differences were not neutral between Prosser and Kloppenburg.
The nature of those differences was central to the fears of Prosser's supporters coming into last Tuesday. It looked like a perfect storm was aligned in Kloppenburg's favor. In a relatively low turnout election, you had a well organized special interest in an almost unprecedented state of excitement. That special interest is well known for its ability to run the ground game, i.e., get out the vote. (Conservative candidates in spring judicial elections, for example, hate running when there is a race for the Superintendent of Public Instruction.) If additional turnout was comprised disproportionately of members of public employee unions, the race could be flipped from Prosser to Kloppenburg even in the absence of a more general anti-Walker backlash.
To some extent, that is what happened. Dane County may have set a record for turnout in a spring judicial election. It turned out at approximately 82% of its November 2010 turnout and at almost three times the level for the Butler-Gableman race. It went 73% for Kloppenburg. Turnout was up in other counties as well and three counties with heavy student populations (Portage, Eau Claire and LaCrosse) were up as sharply as Dane. While Dane was around 10% of the vote in November, it was 12% in April. Had I known only this, I would have thought Prosser was dead.
What got in the way of the Kloppenburg win was that increased turnout in other counties, while not as strong as Dane, was not limited to disgruntled public employees. The collar counties around Milwaukee County did not come out like Dane - just around 67% of November's vote and a little over twice the numbers for Butler-Gableman - but they came out and went as heavily for Prosser as Dane went for Kloppenburg.
The other factor is that turnout in Milwaukee was up only as much as in the state generally. It was not whipped into the frenzy that gripped Dane and did not go as heavily for Kloppenburg (about 57% as opposed to 62% for Barrett) as one might have expected.
Without Dane, Prosser wins with 52.6% - closer than it might otherwise have been but hardly indicative of a statewide Walker backlash. Of course, one might just as easily back out the heavily Republican WWOzCo. When you do that and take out the populous and heavily Democratic Milwaukee, Prosser wins by around ten thousand votes.
One could say this is evidence of an anti-Walker move. If you back those five partisan counties out of the November vote, Walker still wins handily. So Kloppenburg did significantly better (a bit over five percentage points) in the remaining 67 counties.
The problem with such a conclusion is that, even though turnout in the Supreme Court race was heavy, it was still only about a third of the November turnout. It would be interesting to know how the composition of the electorate differed. If turnout was more heavily composed of union members and Democrats, the backlash story gets more complicated.
A counter-narrative is that conservatives took everything the left has to give and survived. The budget repair bill will become law and Prosser was reelected to the Court. The recalls may change that narrative but they may also confirm it.
One line of argument is that Kloppenburg and Prosser should never have been close. But all that tells us is that the race was transformed into a partisan referendum. With or without an anti-Walker backlash, a partisan referendum will be close because Wisconsin is a sharply divided state. The fact of the matter is that neither candidate had any significant name recognition going in (very few people know who is on the state supreme court)and, once a judicial election becomes salient (i.e.. people start to pay attention), incumbency isn't the advantage that it might be in other types of races. Up until recently, of course, the races rarely became salient. This one became more salient than most.
One argument looks at differences from the February primary to the April general but that is not all that helpful. Turnout in April was wll over three times what it was in February. It was a completely different electorate in April, i.e.. different people were voting,and there is reason to think that the differences were not neutral between Prosser and Kloppenburg.
The nature of those differences was central to the fears of Prosser's supporters coming into last Tuesday. It looked like a perfect storm was aligned in Kloppenburg's favor. In a relatively low turnout election, you had a well organized special interest in an almost unprecedented state of excitement. That special interest is well known for its ability to run the ground game, i.e., get out the vote. (Conservative candidates in spring judicial elections, for example, hate running when there is a race for the Superintendent of Public Instruction.) If additional turnout was comprised disproportionately of members of public employee unions, the race could be flipped from Prosser to Kloppenburg even in the absence of a more general anti-Walker backlash.
To some extent, that is what happened. Dane County may have set a record for turnout in a spring judicial election. It turned out at approximately 82% of its November 2010 turnout and at almost three times the level for the Butler-Gableman race. It went 73% for Kloppenburg. Turnout was up in other counties as well and three counties with heavy student populations (Portage, Eau Claire and LaCrosse) were up as sharply as Dane. While Dane was around 10% of the vote in November, it was 12% in April. Had I known only this, I would have thought Prosser was dead.
What got in the way of the Kloppenburg win was that increased turnout in other counties, while not as strong as Dane, was not limited to disgruntled public employees. The collar counties around Milwaukee County did not come out like Dane - just around 67% of November's vote and a little over twice the numbers for Butler-Gableman - but they came out and went as heavily for Prosser as Dane went for Kloppenburg.
The other factor is that turnout in Milwaukee was up only as much as in the state generally. It was not whipped into the frenzy that gripped Dane and did not go as heavily for Kloppenburg (about 57% as opposed to 62% for Barrett) as one might have expected.
Without Dane, Prosser wins with 52.6% - closer than it might otherwise have been but hardly indicative of a statewide Walker backlash. Of course, one might just as easily back out the heavily Republican WWOzCo. When you do that and take out the populous and heavily Democratic Milwaukee, Prosser wins by around ten thousand votes.
One could say this is evidence of an anti-Walker move. If you back those five partisan counties out of the November vote, Walker still wins handily. So Kloppenburg did significantly better (a bit over five percentage points) in the remaining 67 counties.
The problem with such a conclusion is that, even though turnout in the Supreme Court race was heavy, it was still only about a third of the November turnout. It would be interesting to know how the composition of the electorate differed. If turnout was more heavily composed of union members and Democrats, the backlash story gets more complicated.
A counter-narrative is that conservatives took everything the left has to give and survived. The budget repair bill will become law and Prosser was reelected to the Court. The recalls may change that narrative but they may also confirm it.
Misstatements and Evasions on the Supreme Court Canvas.
Some of the writing in the aftermath of Thursday's developments in the Supreme Court race was either ignorant in cynical. Charges that votes were found, went unreported or were "manipulated" by the county clerk on her personal computer are demonstrably false. No ballotes were discovered. No votes were counted on Thursday that had not been counted on election night. No votes went unreported on election night although some were not included in the aggregate total reported to the AP. Whatever Kathy Nickolaus did or did not do on her personal computer is wholly without official impact. The votes that count reflected on ballots that were removed from the machines and secured on Tuesday evening along with absentee ballots that were also counted and sealed. Nothing on Kathy Nickolaus' computer has anything to do with the certified vote totals. Anyone who says otherwise doesn't know what he or she is talking about it.
I fully appreciate that there are some people who don't care because lies or feigned ignorance is useful. There are others for whom the truth long ago disappeared into an ideological haze. I am more concerned about otherwise responsible members of the press - people who ought to know better - who retreat into the passive voice - "questions have been raised" - or a studied agnosticism - "some say" - to avoid grappling with actually happened. We hear that this "looks bad." That is no substitute for addressing whether it is is bad.
There is no doubt that Ms. Nickolaus' error hurt the process. But misstatements or obfuscations of what happened hurt it as well.
I fully appreciate that there are some people who don't care because lies or feigned ignorance is useful. There are others for whom the truth long ago disappeared into an ideological haze. I am more concerned about otherwise responsible members of the press - people who ought to know better - who retreat into the passive voice - "questions have been raised" - or a studied agnosticism - "some say" - to avoid grappling with actually happened. We hear that this "looks bad." That is no substitute for addressing whether it is is bad.
There is no doubt that Ms. Nickolaus' error hurt the process. But misstatements or obfuscations of what happened hurt it as well.
Friday, April 08, 2011
This is Vanilla
Further to my remarks of yesterday, here is why we shouldn't have to worry much about whether the Waukesha vote totals constitute fraud. The adjustment can be corroborated in a number of ways. First, the voter rolls should reflect the higher number of aggregate votes. Second, the machines should reflect the higher number of aggregate votes. Third, the ballots - which were presumably removed from the machines by the inspectors and secured and sealed (s. 7.51(3)) - will reflect the results. Fourth, examination of her computer will reveal that the votes that she reported to the AP did not include the City of Brookfield - where everyone agrees that people cast these votes and that the votes went overwhelmingly for Prosser. Fifth, examination of her computer and that of the relevant official in Brookfield will show that the city's votes were reported to her. Sixth, the city clerk reported these votes on election night.
There were no votes "found" and no change in the official results. It is inaccurate to call what happened a "ballot blunder." It was not a "counting" error. The votes were not overlooked by the inspectors in the City of Brookfield. They were counted and reported to the county clerk. It was an error in reporting to the media by the county clerk. If she would have reported results by municipality on election night, it would have been immediately evident. In fact, in retrospect, those of us who were following the AP results in real time may have seen it happen when Waukesha's number of precincts reporting changed without a change in the vote totals.
If you read the statutorily prescribed process for counting the votes in Chapter 7 of the state statutes, you'll see that there is a mandatory process of verification and reconciliation called "canvassing" that results in certified vote totals. It was during this process that the reporting error was caught.
The canvas always results in changes to the unofficial totals. We usually don't notice them because they don't make any difference in the outcome. This was a very significant - larger than normal - change, but it is very easy to understand. If you want an analogy, think of the question of whether you overreported or underreported the income reflected on your W-2s. It is what it is.
So we ought to verify. But it is eminently verifiable.
There were no votes "found" and no change in the official results. It is inaccurate to call what happened a "ballot blunder." It was not a "counting" error. The votes were not overlooked by the inspectors in the City of Brookfield. They were counted and reported to the county clerk. It was an error in reporting to the media by the county clerk. If she would have reported results by municipality on election night, it would have been immediately evident. In fact, in retrospect, those of us who were following the AP results in real time may have seen it happen when Waukesha's number of precincts reporting changed without a change in the vote totals.
If you read the statutorily prescribed process for counting the votes in Chapter 7 of the state statutes, you'll see that there is a mandatory process of verification and reconciliation called "canvassing" that results in certified vote totals. It was during this process that the reporting error was caught.
The canvas always results in changes to the unofficial totals. We usually don't notice them because they don't make any difference in the outcome. This was a very significant - larger than normal - change, but it is very easy to understand. If you want an analogy, think of the question of whether you overreported or underreported the income reflected on your W-2s. It is what it is.
So we ought to verify. But it is eminently verifiable.
Thursday, April 07, 2011
The Ground War Ends?
If I'm understanding correctly, the error made by Waukesha's county clerk is easily verifiable. She is not changing Waukesha's official return. She is announcing that the official return will differ from what was reported to the media and explaining why. The official return will presumably match the machine tabulation and the ballots which secured on Tuesday evening. This isn't a question of departing from the machine count or of dicovering new ballots.
Folks should look at it but I suspect that it will be pretty straightforward. Its not clear now that there will be a recount or that a recount would have much chance of changing anything.
On the other hand, the one thing that we have learned to expect in the past few months is the unexpected.
Folks should look at it but I suspect that it will be pretty straightforward. Its not clear now that there will be a recount or that a recount would have much chance of changing anything.
On the other hand, the one thing that we have learned to expect in the past few months is the unexpected.
Wednesday, April 06, 2011
The Ground War Begins
What can we take away from the Supreme Court vote? I think it suggests that the recalls will fail and there is no groundswell of opposition to Governor Walker. The "backlash" is largely a Dane County phenomenon and that is not surprising. Challenge the prerogatives of the company town and the regulars get mad. Dane County had a disproportionate effect because it turned out like crazy in what was still a low turnout election.
I did an interview for Channel 12 tonight in which they shared some numbers in the districts of GOP Senators who are facing recall petitions. You play four quarters but I don't see the GOP losing Senate seats in our part of the state - and probably no where in the state. Whether the Democrats will lose seats is another issue. My best guess is no change.
As far as recalling the Governor, not a chance.
As for the Supreme Court itself, I have no idea what will happen in the recount and neither does anyone else. A shift of over 205 votes out of almost 1.5 million is not only possible, it may even be likely. In the last statewide recall, on a much less salient issue, the tally shifted by over twice that on a vote that was a little over half of what we had here. The question is which way they will shift. Given that the Kloppenburg margin is driven almost entirely by votes in a county that had become an ideological fever swamp (something that is very likely to create issues), I think predicting the outcome is a fool's game.
If Kloppenburg does win, the conventional wisdom has been that the Court will have a 4-3 liberal majority. Maybe but maybe not. The one thing I am pretty sure won't happen is that the divisions on the Court will go away. For a variety of reasons, I think they will be worse and given some things that happened in this race I think the gloves will be off in a way that they have not been to date. That's too bad for a variety of reasons but it seems inevitable.
I did an interview for Channel 12 tonight in which they shared some numbers in the districts of GOP Senators who are facing recall petitions. You play four quarters but I don't see the GOP losing Senate seats in our part of the state - and probably no where in the state. Whether the Democrats will lose seats is another issue. My best guess is no change.
As far as recalling the Governor, not a chance.
As for the Supreme Court itself, I have no idea what will happen in the recount and neither does anyone else. A shift of over 205 votes out of almost 1.5 million is not only possible, it may even be likely. In the last statewide recall, on a much less salient issue, the tally shifted by over twice that on a vote that was a little over half of what we had here. The question is which way they will shift. Given that the Kloppenburg margin is driven almost entirely by votes in a county that had become an ideological fever swamp (something that is very likely to create issues), I think predicting the outcome is a fool's game.
If Kloppenburg does win, the conventional wisdom has been that the Court will have a 4-3 liberal majority. Maybe but maybe not. The one thing I am pretty sure won't happen is that the divisions on the Court will go away. For a variety of reasons, I think they will be worse and given some things that happened in this race I think the gloves will be off in a way that they have not been to date. That's too bad for a variety of reasons but it seems inevitable.
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