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Republicans Change Recall Rules in the Middle of the Game

Waukesha judge shifts responsibility from Walker to the state

Jan. 18, 2012
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On Tuesday, opponents of Gov. Scott Walker achieved a historic first when they delivered a million signatures, enough to force a recall of the governor.

Statutes require recall organizers to collect signatures equaling one-fourth of the voters in the last gubernatorial election—about 540,000. Recall organizers say they have collected more than 1 million signatures. The million-plus signatures arrive on 300,000 pages—about 3,000 pounds of petition papers.

They also claim to have enough signatures to force recalls of four Republican senators: Senate Majority Leader Scott Fitzgerald of Juneau, Pam Galloway of Wausau, Terry Moulton of Chippewa Falls and Van Wanggaard of Racine.

But that's not the only notable first in this recall season.

For the first time, the Government Accountability Board (GAB) is being ordered to check all of the signatures for duplicates or other anomalies.

That decision was made by Waukesha Circuit Court Judge Mac Davis, a former Republican legislator, who ignored precedent and shut out recall organizers in a lawsuit brought by the Walker campaign and the executive director of the Republican Party of Wisconsin.

Atorney Jeremy Levinson, who represents the recall committees and the Democratic Party of Wisconsin, argued that Davis should not change the rules in the midst of a recall drive.

Republicans cheered Davis' decision, saying in a statement that it was "a victory for the millions of Wisconsin electors who were at risk of being disenfranchised amidst the recall effort."

Davis hasn't yet provided a written order detailing his instructions, but the GAB went ahead with plans to spend $100,000 on software to create a database of signatures and hire temporary workers.

"That's the only way we can check for duplicates," said Reid Magney, GAB spokesman. "We need to create a database."

The GAB had planned on asking for 60 days to vet the signatures; Magney said he wasn't sure how long the new process would take. He said that the agency would have an estimate later this week, after the petitions have been delivered.

Propaganda Spurs Republican Lawsuit

The GAB's new process stands in stark contrast to how recall petitions have been vetted in the past, as recently as last year.

On Dec. 15, 2011, one full month after Walker recall organizers launched their petition drive, state Republican Party Executive Director Stephan Thompson and the Walker campaign—represented by former U.S. Attorney Steven Biskupic, Joseph Olson and Adam Witkov of the Republican-allied law firm Michael Best & Friedrich—sued the GAB in Waukesha County Circuit Court over the GAB's responsibilities in vetting recall signatures.

Biskupic and his fellow attorneys based their complaint on a piece of propaganda put out by the MacIver Institute, a "public policy think tank" funded by the ultraconservative Bradley Foundation. The Bradley Foundation is headed by Michael Grebe, former chair of the Walker gubernatorial campaign and the chair of Friends of Scott Walker, one of the organizations that filed the suit in Waukesha County.

On Dec. 13, a MacIver Institute web video asserted that the GAB wouldn't strike fraudulent signatures such as "Mickey Mouse" or "Adolf Hitler" on the recall petitions. Two days later, Republicans filed their suit against the GAB.

Unfortunately, MacIver's report didn't tell the whole story, omitting the fact that names such as Mickey Mouse would be flagged for further review.

According to state statute, the target of the recall—in this case, Walker, Lt. Gov. Rebecca Kleefisch and the Republican senators—bears the burden of challenging fraudulent or duplicate signatures. The GAB is merely required to make a "facial review" of the petitions, in which they check the petition circulator's signature and date and look for other anomalies.

In fact, targeted senators in last summer's recalls—from both parties—challenged signatures in front of the GAB and in circuit court. However, those challenges did not strike enough signatures to prevent any recalls from going forward.

The GAB also provided a great deal of transparency during last summer's recalls. It posted all petitions on its website, along with the elected officials' challenges and responses from the recall committees. GAB meetings were also videotaped by WisconsinEye and posted online.

The recall statute sets up a quick timeline. The GAB is given 31 days to vet the signatures, although it can ask for more time. The GAB had estimated that it would need at least 60 days to complete its review under the old protocols. Legal challenges can drag out the process beyond that deadline.

Although the targeted official has the burden of proving that signatures are fraudulent, the state statute also allows that official to raise unlimited funds from the time that a recall petition drive is initiated until the GAB calls an election.

Walker has been busy fund-raising in other states, raising at least $5 million total, all the time decrying the out-of-state money allegedly pouring into Wisconsin in support of the recall. He fails to mention that although his fund-raising is not subject to regular limits, the recall organizers have set up political action committees (PACs) that do have limits and are required to disclose donors.

Recall Organizers Shut Out of Court

Although the Republicans' legal argument is rooted in easily debunked propaganda, Judge Davis accepted the claim that allowing "Mickey Mouse" to pass by the GAB—but then be flagged and challenged by the targeted official—somehow violates a voter's right to equal protection.

Even more curious, Davis shut recall organizers out of the lawsuit, accepting only the GAB as a defendant with no intervenors.

Levinson, attorney for the recall committees and Democratic Party of Wisconsin, told the Shepherd he couldn't remember when recall organizers were not allowed to become a party to a recall suit.

Last week, Levinson filed an appeal to intervene, as well as to stay Davis' decision.

If Levinson's appeal is accepted by a three-judge panel, it would move the case out of Republican-friendly Waukesha County and into Dane County. As Levinson points out in his appeal, the state can be sued in any county of the plaintiff's choice, thanks to a new law passed by the Republican-led Legislature last year.

But that's only if the state or a state agency is the sole defendant.

If another party intervenes along with the state, then the case is automatically heard in Dane County Circuit Court.

Levinson argues that the recall organizers have a stake in the outcome of the decision and have different concerns than the GAB, so they should be allowed to intervene in the suit.

Levinson also questioned the fairness of changing recall rules at the same time a recall drive was being conducted, saying that it was changing rules midstream.

"Absent a stay," Levinson wrote in his appeal, "the recall petitions that will be filed on January 17 will be subject to a review process different than that used for every other recall in Wisconsin history and different from that adopted by the GAB. The details of the process are unknown and, in all probability, not yet established. It is a certainty that the process will be an untested one. It will not be the process appellants [recall organizers] anticipated and relied on in their efforts."

He said the state statutes set out a quick timeline for recalls, and forcing the GAB to enter and review a million signatures in a database would delay the process and contradict the meaning of the statute. He said the GAB's willingness to purchase software and enter signatures went beyond Davis' vague order, which hadn't even been written or detailed as of this writing.

According to a transcript of Davis' verbal order, he said the GAB should take "reasonable" steps to strike duplicate signatures, signatures that cannot be verified and fictitious names.


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