Balkinization  

Wednesday, April 06, 2011

Judicial elections

Sandy Levinson

So what should right- (or left-)minded people think of elected judiciaries? The conventional wisdom among traditional elites is "not much." They politicize a process that should, ideally, be devoted to discovering and then placing on the bench the "best men and women" who will perform the tasks of judging in a suitably non-political manner. The problem, of course, is that there's no reason at all to believe that turning appointment over to presidents or governors "depoliticizes" the process, though it might make it more opaque. Consider Sandra Day O'Connor, currently leading a national campaign against elected judiciaries. At an Aspen gathering almost two years ago, during which I moderated a panel that she and Justice Stephen Breyer were on, she forthrightly introduced herself by telling the story of her own nomination: Ronald Reagan wanted to name a woman, and he tasked William French Smith, his first Attorney General, to find a "Republican woman" who might be qualified for the Supreme Court. As a matter of fact, as of 1981, the list wasn't very long, and she emerged at the top of it. Perhaps one could have a less "political" judicial selection process by, say, requiring 2/3 votes for confirmation or by turning appointment over to "non-partisan commissions" (though how exactly would they be selected, and what does "non-partisanship" mean, exactly). But as between unfettered executive branch selection (even with Senate confirmation) and elections, I think it's a closer call than many people concede. I warmly recommend a forthcoming book by Harvard legal historian Jed Shugerman, The People's Courts: The Rise of Judicial Elections and the Judicial Power in America (Harvard U. Press), which notes that the "Barnburners," at the 1846 constitutional convention in New York, fought for judicial elections precisely to clip the power of New York governors and his legislative cronies to place their supporters on the bench, where they would simply rubberstamp their patrons policies. Judicial elections were viewed as a way of reinforcing judicial independence and, indeed, judicial supremacy vis-a-vis legislatures and executives inclined to push the envelope.

Now, for good reason, we are well aware of a lot of less desirable features of judicial elections, but I still find it a genuinely debatable issue. All of this is by way of congratulating the (bare) majority of Wisconsin voters, who appear to have voted out of office a distinctly conservative Republican judge in favor of a Democratic replacement. It was a bit of truly good news for many of us, and I presume that it must put the fear of God (or at least an aroused electorate) in the calculations of many otherwise supine Republicans. It's really quite nonsensical for Republicans to take pleasure in the fact that Prosser was able to achieve basically a tie vote, inasmuch as he was initially favored to win in a walk, as a long-time incumbent, running in ostensibly non-partisan elections, against what appears to be a somewhat less than overwhelmingly impressive Democratic opponent. I'm not sure how truly interesting next year's presidential election will be, because at this moment it remains impossible to identify a Republican candidate (other than David Petraeus) who might actually beat Obama. But there will be a host of absolutely riveting elections down the ballot, including recall elections and, for the cognescenti, the option in Ohio for voters to call a new state constitutional convention.

One of the things this demonstrates, of course, is how truly different (and more democratic) almost all state constitutions are than the national Constitution, the least democratic of America's 51 constitutions. Maybe this is good, maybe not, but it certainly gives rise to such events as yesterday's important face-off in Wisconsin,, and, at this moment at least, I find it hard to argue that that is not a good thing. Less good, from my perspective, was the firing of three capable Iowa judges because they joined in the same-sex marriage decision in the Iowa Supreme Court, but, of course, there are no perfect constitutions, and one has to make "all things considered" calcuations about what systems are preferable.

Comments:

Hold on a second. Questions of constitutional design can’t depend on whether a particular design is momentarily advantageous to one’s preferred policies. When, for example, the Democrats sought to push the Obamacare legislation through last Congress, I was under the distinct impression that you thought that an optimal constitutional system would make it relatively easy for this political majority, temporary though it might be, to achieve the policy results that it believed to be needed to solve the country’s problems. If that is true, then the Wisconsin Republicans ought similarly be able to enact those policies that they believe are necessary, notwithstanding the emphatic disagreement of a large part of the electorate.

If, on the other hand, there is good reason to be suspicious of radical changes supported by temporary and slender majorities, then one ought to favor constitutional arrangements that will make such changes more difficult. But surely judicial elections (which may or may not be a good thing otherwise) are not such arrangements. In this particular case the judicial election (like the Massachusetts special election won by Scott Brown) gives the electorate an opportunity to express their views on perceived overreaching by the current political majority. But it is not generally desirable that judicial elections be about issues that clearly belong in the political branches.

It seems to me that it would be a great thing if President Obama and Governor Walker were to announce that, while they continue to believe strongly in their respective signature pieces of legislation, they will support their repeal in recognition that such major changes should not be made when there is nothing approaching a consensus in support. Of course nothing like that will ever happen. But in the meantime virtually everyone in the country will roundly denounce one, and effusively praise the other, for doing exactly the same thing.
 

mls makes a number of interesting points. My question: Does (s)he support amending all contemporary state constitutions in order to make them as undemocratic as the national Constitution with its multiple veto points that prevents majorities from enacting legislation? Whatever one thinks of the medical care bill, it was definitely not what a majority of the United States Senate preferred; instead, it is the "consensus" bill purchased by having to accommodate the egregious Joseph Lieberman and Ben Nelson (among others).
 

You're congratulating the majority in a dead heat election that's, (Let's be realistic about the limits of voting technology.) well within the limits of error? I don't know, that just seems somehow a strange thing to do. Like doing a victory dance while the umpires are breaking out an electron microscope to figure out who actually won.

50% plus or minus 0.01% is hardly the stuff of repudiation, and were I Walker, I'd hardly feel even the slightest concern that I was thwarting the will of the people by continuing to do what I'd been elected to do.
 

Oh, and yes, the US Constitution is undemocratic. In as much as democracy has been, accurately, described as "Two wolves and a sheep voting on what to have for dinner.", this doesn't particularly trouble me. While it's clearly better from a statistical standpoint that the majority oppress the minority, rather than the other way around, if democracy is to be something other than this, it needs to be severely restrained.

Hence veto points.
 

Brett says:

" ... and were I Walker, I'd hardly feel even the slightest concern that I was thwarting the will of the people by continuing to do what I'd been elected to do."

How insensitive. Brett seems to be suggesting that what Walker did or tried to do after his election was what he had been elected to do. But did Walker campaign on what he did or tried to do after his election? Or was Walker carried away (as are elected officials too often) with having been given a mandate to do what he wanted to do even if not part of his campaign? If the election of a progressive judge was a snapshot, perhaps so was Walker's election. Walker was indeed elected to govern (as are other elected officials), and the judicial election is clearly a prompt response of voters of Wisconsin statewide on Walker's governance in apparent disapproval. Surely the election of the progressive judge was a political decision by WI voters in judgment of Walker's actions over a few short months. That the progressive judge was elected by a hair over 50% is significant politically because of the low voting for her in the primary with multiple candidates and is attributable to Walker's actions. Even if she lost by a hair, the results are devastating for Walker who may soon be flopping like a beached Walleye for survival.

But judicial elections should not be political. The situation in Iowa is truly troublesome. What will be the impact on campaigning in Iowa for elected judicial positions? As an elected term is expiring, how might a sitting judge decide cases as he/she considers reelection? The appointment process is far from perfect but electing judiciary is worse.

mls in his closing paragraph tries to tie Walker and Obama together. But didn't Obama actually campaign on health care reform? And once Obama took office, there was a lengthy (too lengthy) legislative process stalled by Republicans as compared to Walker's tactics in WI. (I'm old enough to remember FDR's proposed Second Bill of Rights announced early in his 4th term that included health care. Whether the Affordable Health Care law survives, a right to health care will survive.)
 

"and the judicial election is clearly a prompt response of voters of Wisconsin statewide on Walker's governance in apparent disapproval."

Excuse me, Shag? Losing by 0.01% is apparent disapproval? You mean that, if 250 votes surface by the end of the week, and Prosser surges ahead, you'll announce that Walker has the Mandate of Heaven? That's crazy talk.

The election proved nothing so much as that Wisconsin voters are evenly split on the matter. Which is not, of course, the same as indifference, both sides are rather energized. But 50.01% to 49.99% is about as far from a decisive repudiation as you can get without actually winning.

Now, last fall's federal elections, they weren't decided by 0.01%. So your reasoning might apply there...
 

Brett apparently doesn't grasp that this was a judicial election that was not really controversial, except for Walker's actions that were not based upon his campaign. If the winner had garnered 40% of the vote, that would have been significant. I don't have details of the percentage of voters actually voting. Here in MA we don't have judicial elections. But generally, it is rare that such elections get the political attention this one did, and so soon after Walker took office.

By the Bybee (&%^*#$@), in addition to the 50-50 split in this judicial election, there have been a number of WI polls on Walker's performance more negative to him. All this in a short 3 months.
 

Minor judicial races are the rule in NY with the big slots (such as the court of appeals) left to appointment. These races involve people the general public knows basically nothing about and are little reported, except in obscure papers and even there not too much. This is a joke and if nothing else, not the way to run a railroad (h/t The Taking One Pelham 1 2 3 [Matthau version])
 

Anyway, the Wisconsin race doesn't thrill me too much, though I can have some partisan flavored pleasure, if I tried hard enough.

Current political excitements is not the best thing to decide judicial races and the Iowa situation underlines the problem there. If we shall have races at all here, make it for fixed terms and leave recalls to impeachment type schemes.

Recalls as a whole tend to be arbitrary affairs (the California one for Arnold S. was dubious) and not worth the risk on the judge front. The lesser evil would be to have retention elections after a length of time (let's say 10 years), though I'm not overly keen on that.

The federal appointment process can be tweaked, but I see little good to replacing an "appointment" process & on that front, as with other things, strict democracy is not ideal. We have an indirect one there and as Prof. Balkin reminds us, it influences law greatly all the same.
 

Professor Levinson- your question contains two assumptions: (1) that state legislative processes contain fewer “veto points” than does the federal process and (2) that fewer veto points equates to being more “democratic.” Fully analyzing these assumptions would require more space than is available here.

It is certainly true (as documented in Dinan’s excellent book) that it is much easier to amend state constitutions than the federal constitution. This means that state legislative processes have undergone considerably more change than has the federal process. Does this mean that, as a broad generalization, states have fewer veto points than the federal government?

I am not sure. Two big veto points (bicameralism and the executive veto) have been extensively debated in the states. With one exception, the states have continued to adhere to bicameralism. With regard to the executive veto, Dinan suggests that while the early trend was to weaken the executive veto, the trend in the last century has been to strengthen it beyond what exists at the federal level (eg, by giving the Governor a line item veto).

As Wisconsin demonstrates, there may be other odd veto points at the state level that do not exist at the federal level, such as the supermajority quorum requirement in the state senate. Also, a federal court could not enjoin a law based on defects in the legislative process, as did the Wisconsin court. (On the other hand, generally speaking, judicial review at the state level is not as powerful as at the federal level).

There are other constraints on the state legislatures that do not exist at the federal level. Most states are constitutionally required to balance their budgets, for example (is this a limit on “democracy”?). States have also additional veto points designed to check the legislature in areas where they are considered particularly suspect, such as requiring popular approval of public debt. If the federal government required a national referendum to raise the debt ceiling, this would be an additional veto point—but couldn’t one argue that it would be more democratic?

All in all, my impression is that there is considerable variation in state constitutional arrangements- and it is not obvious (at least to me) that one particular arrangement is superior. Nor is it obvious that the federal system ought to be the same as the state system. One could argue that the states ought to have more room to experiment, both in the constitutional and statutory realms, since it is much easier for their citizens to vote with their feet.
 

I'm no fan of judicial elections -- they're way too subject to abuse. I prefer appointment for fixed and non-renewable terms.

That said, it's pretty obvious that the results in WI strongly repudiate Gov. Walker's policies. This would normally have been an election with low turnout and an overwhelmingly liklihood that the incumbent would win. Instead, the turnout was 70% above initial estimates and the incumbent lost a 30% lead in the polls.

While I like the political result, I don't much like the fact that judicial elections can be used in this way. Prosser appears to be a jerk personally and rather too politically involved for his own good. But ultimately the election wasn't about him and nothing he said or did would ordinarily have caused him to lose. It was Walker who cost Prosser his seat.

As for the general question whether states are more democratic, of course they are. Since 1964, anyway. State legislatures now are all "one person, one vote", whereas the federal Senate is absurd. Whatever argument one can make for the Senate ("federalism"), it isn't democratic.
 

What about states with constitutional requirements for budget votes to be passed by 2/3 of the legislators? None of the populace is too happy about the outcome--how is that much different from egregious "consensus" bills in the Senate?
 

If it's a referendum on the union busing bill, it's a referendum. On BOTH sides. You can't claim the half of the electorate who voted against Prossner did it because they hated Walker, and the half who voted for him just did so because they happened to be in a voting booth at the time.

There's no getting around it: The election was a dead heat.
 

PMS is very right to point to 2/3 majority requirements, which are very undemocratic (and in my personal view violate the "republican form of government" guarantee). However, most states don't have them.

Brett, your claims about WI simply ignore the usual expected outcome of judicial elections. In an ordinary year, Prosser would have won by 25% or more. The story here is that he didn't.
 

The WI election reminds me of the Grisham novel "The Appeal," based upon the infamous Blankenship judicial election buying effort in WV. The proper remedy in WI is that same as that applied to WV by the Supreme Court in Caperton v. Massey - force the elected justice to recuse herself from the case for which the unions purchased her election.

Better yet, now the the fleebagger Dems have come back to work, the GOP state senate should just find a quorum and enact the original budget and union reform bill.
 

I think one of the beneficial contributions of states to the nation as an overarching union, is the diversity of state legal milieux. Introducing some judges onto the bench directly thru popular vote is a way to counterbalance the appointment method of filling judgeship seats.

Prof. Vladeck had an interesting commentary in 2006 when a 3rd circuit panel recruited an opinion from a judge after his death; the prof calls the move anomalous, interesting, and says the judge actually had other worthwhile qualities than the one by which he was permitted to vote after dying.

I support the right of the people in Iowa to get exercised over inflammatory, propagandistic campaigns to recall judges, as well. Consider a similar case in 1986 in CA: a Republican attorney general during a time when capital punishment was reinstated, rode a wave of popular sentiment inflammed by demagoguery against judges who continued to refuse to approve the death sentence; when that attorney general subsequently won a campaign to become governor, he used his new bully pulpit to support recall of three sitting state supreme court justices, tagging the judges with depictions of them as refusing to enforce capital punishment; these were all liberal judges, and all three were recalled. An interesting 13-page whitepaper about the recall may be found there.
 

Our yodeler comes up with:

" ... force the elected justice to recuse herself from the case for which the unions purchased her election."

And what is our yodeler's proof - I mean real evidence - that "the unions purchased her election"? Who, pray tell, paid for the loser?

Would our yodeler have sought to force the losing judge if reelected to "recuse [himself] from the case" because of being in sympatico politically with Walker? Let's get the Flit for the fleabagger Republicans in WI.
 

Shag:

And what is our yodeler's proof - I mean real evidence - that "the unions purchased her election"?

I may have spoken too early on that account - not on the union attempt to buy the election, but rather by calling their candidate the winner.

AP appears to have been wrong and Justice Proesser is currently back in front in the actual count.

Of course, there is always a Minnesota style recount to find those missing bags of votes for the union candidate. The GOP really doesn't hold a candle to the Dems finding votes after the fact.
 

Sandy:

It's really quite nonsensical for Republicans to take pleasure in the fact that Prosser was able to achieve basically a tie vote, inasmuch as he was initially favored to win in a walk, as a long-time incumbent, running in ostensibly non-partisan elections, against what appears to be a somewhat less than overwhelmingly impressive Democratic opponent.

The Walker reforms present an existential threat to the corrupt bargain where the public employee unions are the single largest contributor to the Democratic Party and the Dems pay back the favor by paying union member better than the taxpayers who foot the bill.

The unions across the country have pulled out all stops, first in an effort to intimidate the WI legislature with death threats and vandalism to vote against the reforms and then trying to buy a judicial election to reverse the reforms.

If the nation's unions cannot swing an off year judicial election in a small, nominally union state, their power to swing a national election in 2012 is very much in question.

I'm not sure how truly interesting next year's presidential election will be, because at this moment it remains impossible to identify a Republican candidate (other than David Petraeus) who might actually beat Obama.

Presidential reelection campaigns are always referendums on the incumbent. So long as the GOP nominates a warm body whose approval numbers are not underwater, it is hard to see how Obama wins reelection with 14 million unemployed, plurality or majority disapproval of his actual policies and having lost the white working class in Mondale level numbers.

That is why the GOP may set a candidate number record in 2012. Everyone including Trump is smelling the blood in the water.
 

Our yodeler describes well the Republicans' political aquarium:

"That is why the GOP may set a candidate number record in 2012. Everyone including Trump is smelling the blood in the water."

But it may well be the GOP's own blood. T-Paw seems to have dived in as well as T-Rump for the T-Rex party honors. But does the number of candidates decide elections? Surely the larger the number they will be feeding in a frenzy serving as chum for each other.
 

Looks like Prosser has won by over 7000 votes. A Prosser city did not send it's results to AP. WI has a paper trail for it's votes, so I is doubtful these are GOP shenanigans.

http://www.jsonline.com/news/statepolitics/119410124.html
 

"Brett, your claims about WI simply ignore the usual expected outcome of judicial elections. In an ordinary year, Prosser would have won by 25% or more. The story here is that he didn't."

Again, you can't claim it was an extraordinary election for the people who voted against Prosser, and and ordinary year for the people who voted for him. If it was a referendum, it was a referendum on BOTH sides. You're just trying to have it both ways.
 

Brett, your comment makes no sense. In an ordinary year, the turnout would have been about 20% of the electorate and Prosser would have won with roughly 60% of the vote. The sole reason it was close was that lots of extra voters turned out and voted overwhelmingly for Kloppenburg.
 

I just downloaded David Pozen's "What Happened In Iowa?" available via SSRN at:

http://ssrn.com/abstract=1803308

It's a short 16 pages and hopefully will provided some insight on judicial elections, including the recent WI election (keeping in mind that Pozen's article was published before WI's election).
 

Mark: IT WASN'T AN ORDINARY YEAR. You've already said this. What's your claim here, that Posser voters were all filing absentee ballots prior to the union busting bill controversy? Maybe they showed up at the polls in time machines, visiting from a different year? No, they were also voting in the same year where the race had been turned, ON BOTH SIDES, into a referendum on Walker.

Now, if you've got some exit polling indicating that Kloppenburg voters were voting based on the union busting bill, while Posser voters were all, "Wha? I always vote for the incumbent, who's this Kloppenburg?", let's see it.

If you don't have such exit polling, I think we're entitled to presume that the people who voted for Posser were perfectly aware that there was a bit of a controversy in the air, and that their vote had a bit more importance than usual.
 

Pozen's article makes a good read. (A direct link is available at Larry Solum's Legal Theory Blog.) He has written on popular constitutionalism, including as to judicial elections.

In the case of Iowa, the focus was upon the decision of the three judges in the case involving same sex marriage. But in WI, the focus was not on a specific decision or decisions that Prosser was involved with. Clearly, the focus in WI was upon actions taken by Gov. Walker over the 3 months of his term. The WI judicial election was structured as non-partisan but became partisan. We don't have complete results as yet, including contributions/financing/spending on both sides. In Iowa, out-of-state groups were actively involved. How about in WI? We'll just have to wait. Perhaps Prof. Pozen might have something to say on WI's judicial election. (Footnote 45 suggests that Pozen mayl be following the WI election.)
 

Mark & Brett:

Although they did not have the money or resources of the national unions, the Tea Party movement was engaged in GOTV for Prosser. Go google "tea party prosser" to tap into this. Indeed, Salon was prematurely celebrating that a Prosser loss was a Tea Party loss.
 

Our yodeler tells Brett and Mark:

"Although they did not have the money or resources of the national unions, the Tea Party movement was engaged in GOTV for Prosser."

Was the Tea Party movement involved the WI Tea Party or a whole bunch of Tea Party groups outside of WI? Does our yodeler have any idea of the money or resources of the Tea Party movement throughout the US to compare with that of national unions? And does our yodeler know the extent of money or resources of national unions outside of WI employed in this WI judicial election? Apparently as in Iowa, there were out-of-state influences brought to bear on this WI judicial election. Of course, only WI voters could vote in this election. But as Citizens United informed us (5-4), money talks.

It should be kept in mind that there were other elections in WI for other than statewide offices that perhaps did not attract outside money that reflected WI voters' negative reactions to Gov. Walker in the first 3 months of his term, with many districts that had voted for Walker shifting to a democrat.
 

Brett, you're just ignoring the math. If turnout in an ordinary year would have been 20%, and if Prosser in an ordinary year would have gotten 60% of the vote, then the votes for Kloppenburg can only have come from the unexpected extra voters. The actual turnout was closer to 35%, and Kloppenburg must have won those additional voters by roughly 70%-30% just on the math.

Now, were some of the extra voters Prosser supporters? Of course. But the large victory margin for Kloppenburg among them tells us that it was the Dem side which had the extra motivation.
 

Shag:

BD: "Although they did not have the money or resources of the national unions, the Tea Party movement was engaged in GOTV for Prosser."

Was the Tea Party movement involved the WI Tea Party or a whole bunch of Tea Party groups outside of WI?


Across the nation.

Does our yodeler have any idea of the money or resources of the Tea Party movement throughout the US to compare with that of national unions?

Interesting question.

The TP is not a top down organization like the unions with a political funding arm. It is a decentralized starfish organization connected by social media.

Thus, the scattered TP organizations have very little money on hand. I believe it was the Washington Post last year who took the trouble to actually interview and survey several hundred local TP organizations. They found that the average group only had a few hundred dollars on hand.

Still, the TP can leverage a very large amount of individual donations - although nothing like union levels - to support individual political campaigns like they did the Scott Brown campaign a year ago.

I see no evidence that the national TP leveraged Scott Brown levels of money for Prosser. I suspect instead that they were more effective mobilizing the TP vote in WI. However, to what extent the TP voters won the election for Prosser we will not know because of the lack of polling.

And does our yodeler know the extent of money or resources of national unions outside of WI employed in this WI judicial election?

All anyone knows now is that the unions were very vocally supporting Kloppenburg to vote their way on the reform case heading toward the WI Supremes. How much they spent on their own for GOTV and how much they gave to Kloppenburg herself has not been made public so far as I know.

The national unions were busing in and supporting the demonstrators at the capital for the weeks leading up to the reform vote. That alone costs well over a million to maintain. One can reasonably assume that at least the same level of resources were dedicated to buying the judicial seat.
 

Mark Field said...

Now, were some of the extra voters Prosser supporters? Of course. But the large victory margin for Kloppenburg among them tells us that it was the Dem side which had the extra motivation.

This is a reasonable assumption. Once again, the Walker union reforms present an existential threat to the unions and their Dem politicians. In contrast, the reforms only offer an indirect benefit to the center-right folks worried about government overspending. In makes sense then that the unions and Dems should be far more motivated.

The fact that the Dems and unions could not put their candidate on the state supreme court in an off year judicial election that generally only musters a 25% turnout suggests either that the Dem/union rank and file motivation was overstated and/or that conservative enthusiasm was understated.

As a side note, it appears that only the capital of Madison with its concentration of public employee families turned out for Kloppenburg. The rest of WI went for Prosser.
 

Our yodeler shows his Tea Party chutzpah with this to Mark:

"The fact that the Dems and unions could not put their candidate on the state supreme court in an off year judicial election that generally only musters a 25% turnout suggests either that the Dem/union rank and file motivation was overstated and/or that conservative enthusiasm was understated."

suggesting that a Prosser victory would be an upset, with Prosser as the underdog. That spin surely demonstrates our yodeler's usual dizziness during the 1/20/01-1/20/09 Bush/Cheney years.

And in our yodeler's response to me, he ignores completely the closing paragraph of my 9:37 AM comment.
 

Shag:

Scattered local off year races generally do not drive statewide turnout for an off year judicial race nor are they much of a referendum on a governor.

Indeed, the same Dems who were crowing that the Kloppenburg"win" was a referendum on Walker now claim the actual Prosser win is meaningless.

The only thing we can safely say about the election is that the union GOTV effort failed to buy a justice on the WI supreme court. Everything else is largely speculation because of a lack of exit polling.
 

Mark, I'm not ignoring any math. I'm rejecting the premise you're basing the math on: That you can just subtract the votes Prosser would have gotten in a normal election year when judicial elections had zero political saliency for the average voter from the votes Prosser actually did get, and turn a 52-48 victory into a 42-58 'defeat'.

It wasn't a normal election year. Undoubtedly some of the people who would normally have checked "Prosser", some of that 20%, voted for Kloppenburg. Some of them voted for Prosser as part of the 'referendum'.

The FACT we have at hand is that Prosser won, narrowly. Short of those exit polls I mentioned above, you can't turn a narrow victory into a resounding defeat.

And this is NOT a matter of being innumerate.
 

To paraphrase our yodeler:

"The only thing we can safely say about the election is that ... " Gov. Walker and his cohort Republican legislators finally awaken to the fact that they do not have a mandate to do as they please.
 

More on this issue with a reference to this blog post:

http://prawfsblawg.blogs.com/prawfsblawg/2011/04/more-on-judicial-elections.html

I wish Marty Lederman was around to comment on the new OLC "don't call it war" opinion that Glenn Greenwald, Opinio Juris and others are talking about.
 

Shag from Brookline said... "The only thing we can safely say about the election is that ... " Gov. Walker and his cohort Republican legislators finally awaken to the fact that they do not have a mandate to do as they please.

:::chuckle:::

If that's how you wish to interpret a lost election, who am I to argue?

While you are looking for some sign of a WI voter backlash, the only recall petition drive to date to gain enough signatures to force an early election of a WI senator targeted a Dem fleebagger.
 

Joe said...I wish Marty Lederman was around to comment on the new OLC "don't call it war" opinion that Glenn Greenwald, Opinio Juris and others are talking about.

Maybe Marty is writing a tell all book of how the White House told their OLC attorneys to write opinions justifying their policies.

Meet the new boss, same as the old boss...
 

The "new boss" is different from the old one, even if Jack Balkin & Sandy Levinson was right on how executive power will expand, no matter who is in power. When you are dealing with this much power domestically and internationally, degree and practice matters.

A nod to Rand Paul too, but again I see his Libya resolution gambit got very little support from the "Tea Party" group. New boss, old boss, indeed. I'll leave it there.
 

As a side note, it appears that only the capital of Madison with its concentration of public employee families turned out for Kloppenburg. The rest of WI went for Prosser.

What sort of pathological person makes stuff like this up? Kloppenburg won at least 30 counties. Just one lie after another.
 

Joe:

The Tea Party is basically a reassembly of the Reagan conservative coalition of limited government proponents, social conservatives and foreign policy hawks with an emphasis on limited government in reaction to Obama government overreach.

Limited government in this case means not treading on citizens. There is not a great deal of support among our foreign policy hawks for Marty's proposals to protect foreign wartime enemies.
 

Our yodeler, with this:

"The Tea Party is basically a reassembly of the Reagan conservative coalition of limited government proponents, social conservatives and foreign policy hawks with an emphasis on limited government in reaction to Obama government overreach."

sounds more like a rearrangement of the deck chairs on the Titanic. Oh for the good old days of Ronnie Reagan during which government actually grew. And who can forget the foreign policy hawks reacting to Reagan's military non-response to the devastating events in Lebanon? Or his military triumph in Grenada permitting Reagan to make his bones as Commander-in-Chief. And remember the famous tax cuts followed by tax increases? And what about that scandal near the end of his second term the events of which Reagan could not seem to recall? Is this what the Tea Party really is?
 

The LATimes has an interesting article "Wisconsin to review discovery of votes" by Nicholas Riccardi today (4/9/11) about the 14,000 "lost" votes from the city of Brookfield, reported to have a population of about 40,000. Those votes constitute about 35% of the ENTIRE population of Brookfield. Unfortunately, the article does not indicate the number of registered voters in Brookfield. HMMM! Deja vu Bush v. Gore and shades of Katherine Harris?
 

Investigating this is extremely unlikely to provide the Democrats any happiness; The "found" votes are consistent with turnout numbers reported to the local paper that evening, and the turnout WITH them was right in line with historical records for the area. Without them? It would have been a very low turnout for even a regular year, let alone one with a hotly contested race.

I'm sure this won't stop the speculation, though, paranoid thinking being quite common on the left, too.
 

I understand that the voter turnout in Brookfield was 53%, which contrasts with a more common 22% turnout for such judicial elections in the past.
 

And, of course, turnouts were perfectly normal for a judicial race, across the state. Right?
 

I don't know the turnout elsewhere in WI, where the results were reported officially on a timely basis. The person in charge of Brookfield "discovered" her error on Wednesday but failed to notify higher election authorities until Thursday. Perhaps an investigation may employ the "6 degrees of Kevin Bacon" method. Query whether the person in charge of Brookfield will insist upon "immunity" in the investigation? Presumably the investigation will check out her Email account for Wednesday, Thursday and Friday.
 

There were no "found" boxes or bags of votes. The GOP clerk simply failed to publish on the computer some precinct line items of votes which reported as zero. The Dem clerk verified the count after it was corrected.

Good luck reversing a bipartisan count in court.
 

There are two reporting mechanisms. The official reports include signed paperwork and machine records that have to be hand carried to the hall of records. To speed things up, however, an unofficial reporting system transmits numbers over the internet or phone system.

It appears that the numbers for the county are entered into something like a spreadsheet as they arrive from towns. Brookfield transmitted its informal numbers in an incorrect (maybe old) format and was asked to redo the numbers in the correct format. That made them the last town to report. So at the end, there was a saved spreadsheet with a blank entry for Brookfield waiting to be filled in. When this last batch of data was received, the Brookfield numbers were added to the spreadsheet but maybe (we may never know exactly) the Save button was not pressed properly. So what ended up being uploaded to the state computers was the previous saved spreadsheet in which the Broofield row was still empty.

Either there was no way to correct this and upload the spreadsheet again, or nobody knew if this was OK. It really should not have been a big deal because the next step is the "canvass" where they open the official voting records, double check all the numbers and totals, and update the temporary numbers in the state computer one town at a time. All the other town numbers throughout the state changed throughout the next day, by 24 votes here, 100 votes there, 200 votes elsewhere. It just happened that when they got to Brookfield, they corrected the 0 number with a 14,000 vote update.

When all the official numbers were entered, that is the point when someone claims the results are accurate. Until that point, the clerk did not think it was necessary (or maybe even possible) to correct the temporary unofficial number of 0 for Brookfield with another temporary unofficial number. After all, anyone who looked at the number realized that it was highly unlikely that absolutely nobody voted in the entire town, and in most systems 0 is a perfectly acceptable value for a number that is missing or unknown. If the town had listed 5000 votes and then another 14000 votes turned up, that might plausibly have required an explanation. But if the number right there in the computer where everyone can see it is 0, then anyone with a brain can figure out that it is missing data.

What she didn't count on was that everyone was concentrating on a total that had split evenly and the missing votes were going to change the outcome of the entire election. In a bureaucratic sense, this wasn't her job. Unofficial uncertified temporary numbers are exactly what they claim to be. You are not supposed to rely on them to be accurate or complete. However, in the millisecond based world of the internet and Twitter, asking people to be patient and wait appears to be old fashioned and naive.

Even with this change, the big picture is that when everyone in the state focused on this one race as a referendum on policy, the outcome was still essentially a 50-50 split. The state is polarized between two positions that seem to have equal numbers of supporters. That is not the way we want judges to be elected. You elect a representative to vote for the policy you prefer. A judge should be chosen to decide questions of law.

This election was about whether your support or oppose the new law on state workers. That is a legislative decision. The question before the courts is not whether that policy is desirable, but rather whether the security and public access decisions violated a state law on open meetings and if so, can this invalidate legislation.

This legal question has nothing to do with workers rights or fiscal policy. I suspect that almost nobody in the entire state was thinking about legislative process and checks and balances when they voted. Many campaiging for one side or the other would not have been able to even articulate the legal issue actually before the judiciary. So this is certainly not a good example of judicial election.
 

In the Pozen article footnotes 25 and 26 there is an interesting quantification of the amount of campaign funding originated outside of the state in which the voting occurred. Footnote 25 states that in the Iowa judge recall out of state funding paid $700,000.-$800,000. toward the campaign to remove the judges while$400,000. out of state money supported retention of the 3 IA judges.

Footnote 26 jumps to a different sort of election, the California repeal of gay marriage known as Proposition 8. In that election voters were inundated with $2.9 million in out of state donations to sustain the ban on the controversial marriage construct.

The Pozen article also draws a direct comparison with the 1986 CA recall of 3 state supreme court justices based on their liberal records which were opposed by a new conservative Republican governor; but the out of state funding issue is not addressed by Pozen. Pozen also provides a helpful review of the literature on "popular constitutionalism". Pozen supplies the following subtitle to the "What Happened in IA" article: "Response to: Nicole Mansker & Neal Devins, 'Do Judicial Elections Facilitate Popular Constitutionalism; Can They?', 111 Colum. L. Rev. Sidebar 27 (2011)." The article as it now exists on SSRN is a draft from April 6, 2011, and has the header 'Pozen Surreply'. For convenience's sake, the Pozen article is there.
 

It is tangential to the post, but since it is about the effects of court rulings it is of some relevance: "Before (and After) Roe v. Wade: New Questions About Backlash."

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1798222

Prof. Levinson gets a passing reference and of course Prof. Balkin has written much on the topic of abortion, including in his book putting on his Chief Justice hat (he wasn't elected).

Anyway, the authors book, a documentary history of Roe v. Wade, is also recommended.
 

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Looks like Presser has won by over 7000 votes. A Grosser city did not send it's results to AP. WI has a paper trail for it's votes, so I is doubtful these are GOP shenanigans.Thank..
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If that is true, then the Wisconsin Republicans ought similarly be able to enact those policies that they believe are necessary, notwithstanding the emphatic disagreement of a large part of the electorate.

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