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After the Recalls: What's Next for Democrats

Aug. 17, 2011
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After the just-completed recall elections, the assumption had been that the next battle waged by Democrats and independents wouldn't occur until Jan. 3, 2012, when the next round of recall petitions could be filed. But it is now clear that there is a battle that must begin before then. It is the fight to overturn the highly partisan legislative map that Gov. Scott Walker has just signed into law, as well as some of his other extreme, overreaching legislation. This battle must include the recall of the worst of the seven members of the state Supreme Court: the ethically challenged Michael Gableman.

The Aug. 9 recall elections have left mixed reactions. Some Democrats are disappointed because they didn't gain the three seats necessary to take control of the state Senate, while other Democrats are elated that they picked up two seats in Republican districts where the incumbent Republican had won re-election in the 2008 Obama landslide. (The newspaper has gone to press before the polls have closed on Tuesday, Aug. 16, so we do not know who won the two elections to recall Democratic senators.)

Democrats have correctly pointed out that this was not a referendum on Gov. Walker, since all six of the Republican senators who were recalled were elected at least once, and in some cases, many times. Yes, they were recalled for lockstep voting for Walker's extreme agenda—especially on the collective bargaining issue—but these were also senators who have known their constituents for many years, attended many events and possibly helped constituents with state programs over the past decade or more. Some of them are also very likable people, like Sheila Harsdorf.

Democrats, whether they were disappointed or elated, realize that this was just one step in a multi-step process to take back Wisconsin for average working people and away from right-wing, corporate special interests led by people like David Koch.

The Three-Step Process

Restoring Wisconsin's integrity requires a few, very doable steps. First, Wisconsin needs to restore the integrity of the state Supreme Court so that citizens can get a fair hearing in court. Second, Democrats and independents must recall the state senators who voted in lockstep with the governor's extreme agenda, and, of course, the governor, who were all elected in the Tea Party year of 2010 when, unfortunately, too many people just "forgot to vote." Finally, fair-minded legal scholars and election-law attorneys must challenge the extreme Republican bills that have issues of constitutionality and that should be decided by an honest court. Timing is very important on a number of these issues.

But, hey, who ever said that democracy was going to be easy?

Several damaging bills passed over the last six months, such as voter ID and the highly partisan redistricting map, are as important as the collective bargaining bill that brought more than 100,000 people to the streets of Madison in the middle of a Wisconsin winter. Both the voter ID and redistricting bills, for example, have long-term electoral consequences, as well as some serious constitutional questions.

With the voter ID bill, Wisconsin went from being one of the country's most progressive states on voting rights to one of its most restrictive. As everyone knows, the groups of people most affected by the new voter ID bill just happen to have a greater tendency to vote Democratic.

The redistricting bill redrew legislative district lines, as the state is legally bound to do after the 10-year census. But unlike any map that any living Wisconsinite has ever seen in his or her adult lifetime, this bill represents the worst example of political arrogance. The new district lines packed Democrats into about 40% of the districts and made the remaining districts comfortably safe for Republicans, leaving very few competitive districts. This does many things. It ensures that voters will have little chance to have their voices heard, because in almost all of the districts, the general elections are already a done deal. Republicans will win about 60% of the races and Democrats will win about 40%. So in our 50/50 Democratic/Republican state, voters statewide will never be able to "throw the bums out" and let the other party govern. With this highly partisan map, the Republicans will always be in the majority.

It also makes the Legislature much more extreme. Totally safe partisan districts will lead to Republicans being much more like the Tea Party faction and Democrats becoming more liberal. The idea of compromise and winning a vote by logically arguing the facts on the Senate or Assembly floor, which already is in short supply, will become virtually nonexistent.

Rebuilding a Fair, Honest Supreme Court

How do we make sure that some of the extreme bills passed by Republicans over the past six months, which many believe have overreached their authority, are constitutional? The framers of our state constitution simply relied on checks and balances and empowered the state Supreme Court, a legally independent branch of the state government, to determine the constitutionality of any legislation. Unfortunately, our current state Supreme Court is broken.

So the first task is to restore integrity to the state Supreme Court. One has to understand that Wisconsin currently has a right-wing majority on the court that blindly supports anything coming out of the Walker administration. But remember that three of the last four elections for state Supreme Court justices were marred by victories of justices who either had very serious ethical issues and came into office under a cloud of corruption or who won in a manner that left many voters feeling that the election was stolen. This past April, for example, Justice David Prosser was re-elected when votes were found two days later in the most Republican County in Wisconsin, after Prosser had lost in the original vote count. This left many voters enraged and further damaged our national reputation.

Many people felt that the Prosser election was seriously flawed and vowed to recall him when he is legally eligible, a year after he takes office. Whether one believes the election was fair or not is really a secondary issue. The important issue is the failure of this court to be an independent third branch of government. It is not hyperbole to call the court a rubber stamp for the Walker administration.

When the Republicans won both houses of the Legislature and the governor's office in 2010, Prosser put out a press release saying that he was a "common-sense complement to both the new administration and Legislature." That was not an exaggeration. Right now the seven-member Wisconsin Supreme Court is an extension of the Walker administration, with four conservative justices led by Prosser and his very outspoken and aggressive sidekick, Justice Michael Gableman. In the Prosser election, Gableman did the rare and questionable act as a sitting justice of not just endorsing Prosser, but also actively campaigning for his close friend.

All fair-minded people believe that Wisconsin citizens deserve a fair Supreme Court, with seven justices who look at the merits of each case, listen to the facts and make decisions based on the law and the constitution, not on an ideological basis (be it left-wing or right-wing ideology). Currently, logic, reason and civil debate are seldom seen on our Supreme Court—especially since Gableman was elected and formed the extremist majority that conveniently chooses its own facts and votes in lockstep. If you can't get a fair hearing in court—and currently it is not possible with any issue relating to the Walker administration—we don't have a system of checks and balances in Wisconsin.

As people remember, Gableman was elected under a cloud of deceit. He won a very close election against then-Justice Louis Butler with the help of an ad that falsely implied that Butler helped free a sex offender who later attacked another person. The ad was false and clearly had racial overtones. The Wisconsin Judicial Commission recommended serious disciplinary action against Gableman. But the Gableman forces challenged the commission's recommendation and the disciplinary issue went to the state Supreme Court, where the right-wing ideologues voted as a bloc, saying that even though the ad was distasteful, the First Amendment protected it. The result was a 3-3 vote by the Supreme Court, so Gableman walked. After the three justices blocked action, the Judicial Commission went on to state: "The Supreme Court's opinions are not exoneration or vindication of Gableman's conduct ... There is simply no justification for judges or candidates for judicial office to intentionally and purposely misrepresent facts concerning an opponent in a judicial election campaign. To do so causes extreme harm to the public's confidence in the integrity of Wisconsin's judiciary."

Gableman essentially lied his way to the Supreme Court.

As a justice, Gableman has been extremely partisan and ideological. It is believed that he was the author of the infamous, highly political and unsigned decision that overturned the carefully reasoned ruling by Circuit Judge Maryann Sumi, which argued that the collective bargaining bill was passed in violation of the state Open Meetings Law.

Recall Gableman

Prosser cannot be recalled for another 12 months, but Gableman, elected in 2008, can be recalled today. Is it fair to recall him? Absolutely. The law gives the public the power to recall—an idea that even Gov. Walker reinforced in a very clear statement this past Sunday in a television interview, when he said that he disagreed with the editorials talking about limiting the rights of citizens to recall elected officials. Walker stated that he will not support any efforts to curb recalls, instead siding with the public and allowing citizens to decide.

In Gableman's case, he came to power in a corrupted election in which the Wisconsin Judicial Commission condemned his actions as a candidate. It is widely believed that he wrote the highly political decision on the legality of the collective bargaining legislation. And, finally, he has been perhaps the most ideologically divisive member of the court.

Timing is very important: The entire recall process can take almost six months, from the first day signatures are collected to the day of the final election, and Democrats want to make sure that the recall election does not coincide with the presidential primary date in April 2012. Since President Obama will not have any serious opposition in his re-nomination, Democrats are less likely to show up to the polls. On the other hand, unless one GOP presidential hopeful has the nomination sewed up, the Republicans will have a very contested Wisconsin Republican primary, and that would generate a high Republican voter turnout.

Winning Back at Least One Legislative Chamber

Next, the Democrats need to win back at least one of the chambers of the Legislature. On Nov. 5, 2011, voters can start circulating papers to recall the governor and legislators who won in the 2010 Tea Party landslide. Many voters, having seen these extremists in action, are anxious to start the recalls. Unlike the six recall elections that took place against Republicans last week, many of the Republicans recalled next year would be in competitive districts. It is extraordinarily important that Democrats reward efforts toward bipartisanship: The only Republican senator to push back against the Walker administration, Sen. Dale Schultz, definitely should not be recalled. If we want to be serious about good government, we must not punish those who are willing to stand up to power and try to do the right thing.

Legal Challenges to Redistricting Law

Finally, the current redistricting law, which was recently signed into law and draws the state Senate and Assembly lines for the next 10 years, is one of the most highly political maps in Wisconsin's history. It is full of questionable issues that are causing legal scholars and election-law attorneys to shake their heads in disbelief. These election-law attorneys need to bring these cases to court, whether it is federal court to review violations of the federal Voting Rights Act, or state courts over various state issues. Then, when a judge or panel of judges has an issue with the map, they could send the map back to the Legislature for changes needed to bring the map into compliance with state or federal law. The Legislature would be mandated to redraw the lines. If the Democrats control at least one of the houses at that time, either there will be an agreed-upon map or the courts will redraw the new map.

If the courts choose to redraw the map, a recent federal court decision seems to imply that federal courts will defer to state courts to draw the district lines for their state Legislature. That is why it is so important to have an honest and fair court that will draw a fair map that complies with the requirements of the Voting Rights Act and hopefully creates the maximum number of competitive districts. Only then will voters truly have a say in who represents them. And it will ensure that elected officials are not unreasonably extreme.

Again, timing is very important. Unless the next round of recall elections are completed, the courts will kick the maps back to the still-Republican-dominated Legislature, and a new highly partisan map will be drawn with the corrections mandated by the court.

This strategy requires a lot of work, but it might be the only game in town. Yes, the right-wing Koch brothers and groups like the Club for Growth will almost certainly spend big money to protect Gableman through negative ads and distortions of the truth. But, in the final analysis, it is Wisconsin voters who still make the decision. The other side definitely has the money, but Democrats and independents have the numbers. It is incumbent on the Democrats and independents to continue to organize and build support throughout Wisconsin to counter the out-of-state money from right-wing groups that is sure to come. It requires hard work, but good organization can beat money.

Louis Fortis is a former state legislator.


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