On Thursday, Circuit Court Judge Mac Davis (Waukesha County) gave Scott Walker a ruling that momentarily has changed the rules governing recall elections – something neither Walker nor the Legislature were able to achieve before the launch of the recall effort.
Davis’ ruling has a significant impact on the way the Government Accountability Board (GAB) treats recall petitions and signatures. In his opinion, Davis stated the GAB ”must take reasonable, affirmative steps to identify and strike duplicate, fictitious or unverifiable signatures from recall petitions.” Lewis Beilin, GAB Attorney, responded ”the agency has used the same procedures in recall elections involving both Democrats and Republicans since the 1980s, and that it has always weeded out obviously bad signatures – including alerting the district attorney’s office whenever deliberate fraud is suspected.”
Prior to this ruling, petitions and signatures when filed by qualified circulators, and certified as being authentic by the recall committee and circulators, were presumed to be valid. Judge Davis stated that he ”based his ruling on his interpretation of the Wisconsin Statutes” rather than the Constitutional Equal Protection clause cited by Friends of Scott Walker. Section 9.10(3)(b) of the Wisconsin Statutes provides that the GAB must “determine by careful examination whether the petition on its face is sufficient”, and was cited by the plaintiffs as the basis for the decision compelling the GAB to actively screen petitions. On the contrary, Statute 9.10 taken in full is in conflict with Davis’ ruling. Subsection 2 (g) reads: “The burden of proof for any challenge rests with the individual bringing the challenge”, and supports prior GAB opinion and ruling on this statute.
Davis has succeeded in legislating from the bench in the worst partisan manner, changing the rules of the recall process in the middle of the Constitutional action. Scott Walker has managed to bypass legislative accountability, and GAB autonomy in finding a friendly Judge to compel the GAB to operate in a manner that benefits his political agenda. Marquette University Constitutional Law Professor Edward A. Fallone opines:
“…the GAB must keep looking over its shoulder at Judge Davis, because it is likely that the Friends of Scott Walker will challenge the adequacy of the new procedures in court no matter what the GAB does.
It appears that the strategy of the Friends of Scott Walker is to use litigation in order to delay any actual recall election as long as possible, thereby allowing public emotions to cool and the anti-Walker sentiment to wane.”
The absurdity of this ruling can be found in a simple extension of logic. Under Wisconsin Statute 9.10 and previous GAB ruling, a legally circulated and authenticated recall petition contains signatures that are presumed valid on their face unless:
(e) An individual signature on a petition sheet may not be counted if:
1. The signature is not dated.
2. The signature is dated outside the circulation period.
3. The signature is dated after the date of the certification contained on the petition sheet.
4. The residency of the signer of the petition sheet cannot be determined by the address given.
5. The signature is that of an individual who is not a resident of the jurisdiction or district from which the elective official being recalled is elected.
6. The signer has been adjudicated not to be a qualified elector on grounds of incompetency or limited incompetency as provided in s. 6.03 (3).
7. The signer is not a qualified elector by reason of age.
8. The circulator knew or should have known that the signer, for any other reason, was not a qualified elector.
(em) No signature on a petition sheet may be counted if:
1. The circulator fails to sign the certification of circulator.
2. The circulator is not a qualified circulator.
The presumption of validity on its face of a signature by the arbiter, or judge (in this case the GAB) is required under statute governing the recall process. Just as a defendant is presumed innocent under the judicial system until proven guilty-the burden of proof being on the plaintiff challenging that innocence – or guilt, in this case. In the activist Judge Davis’ courtroom, is the defendant presumed guilty upon entrance into his courtroom? Davis’ ruling requires the GAB to act counter the statute and presume signatures to be invalid, and “take affirmative steps to identify and strike duplicate, fictitious or unverifiable signatures from recall petitions.”
Subsection (g) of the statute clearly places the burden of proof on the recall petition challengers, not the GAB. There are nearly one million citizens of Wisconsin engaged and vested in Scott Walker’s recall, and the number of signatures that will be turned in will be an overwhelming number compared to the 540,000 required. Compared to the cost of the recall, what is the cost to Democracy of the GOP attempts to disenfranchise the recall right of those 1 million citizens?
The Friends of Scott Walker and the GOP have no regard for the rule of law, and have proven again they will manipulate said law to forward their political agenda, and preserve their seat of power. At this time, the GAB has yet to make clear their response to this ruling. The grassroots citizens of Wisconsin now need to step forward to assure their voices that have spoken in the recall process continue to be engaged and heard to complete the process. We must do whatever is necessary to ensure those who sign the petitions are not disenfranchised – as is the real goal of Scott Walker and the GOP.