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Recusal Row in Ohio Republican Party v. Brunner:

In Ohio Republican Party v. Brunner, Judge Boyce Martin took aim at Judge Alice Batchelder for failing to recuse herself from the case.

What I find troubling is the fact that Judge Batchelder did not recuse herself from voting for rehearing this case en banc, while her husband stands for reelection this year as a state representative in Ohio, whose election will no doubt be substantially altered by the way the en banc majority ultimately decides this case. At stake here is the public’s confidence not only in the outcome of its elections, but also in the impartiality of its judges who must, from time to time, review the procedures which govern those elections.
Judge Martin cited 28 U.S.C. § 455, which requires recusal when a judge's "impartiality might reasonably be questioned," and further requires recusal where the judge's spouse has "an interest that could be substantially affected by the outcome of the proceeding." Further, Rule 2.11 of the ABA Model Code of Judicial Conduct calls for recusal where a judge's spouse "has more than a de minimis interest that could be substantially affected by the proceeding."

After the initial opinion was issued, judge Batchelder wrote a concurring opinion defending her decision not to recuse.

I write separately because Judge Martin scolds me for failing to act on my own initiative to recuse myself from the vote on whether to rehear this case en banc. His accusation cannot be taken seriously, and I cannot now — as I could not when the question first came before us — justify recusing myself. . . .

Bill Batchelder . . . is not a named party to this lawsuit, and is one of literally hundreds of candidates on the November ballot in Ohio. Unless Judge Martin is claiming that only Republican candidates will benefit from preventing vote fraud, Bill Batchelder’s candidacy is no more affected by this litigation than is the candidacy of every other individual on that ballot. But this case is not about candidates. It is about voters. It is about the right of every single legally registered voter in the state of Ohio — regardless of party affiliation — to cast his or her vote, and the corresponding right of each of those legally registered voters to be protected from having that vote diluted by illegally or fraudulently cast votes. The only thing at issue here is the ability of local elections officials to obtain the necessary information to ensure legal voting and to prevent illegal and fraudulent voting. . . .

In short, there is no basis for any claim that enforcement of the voter-registration laws affects my husband differently from any other candidates because he is a Republican, or that discovery of voter fraud is more beneficial to Republicans than to others. If, as Judge Martin suggests, my husband (and his party) stand to benefit from the outcome of this decision — that is, if my husband’s chances of winning election are improved by assuring a fair election — then my husband stands to benefit in the same way as every other Ohio voter, each of whom is entitled to participate in a fair election. None of this provides any basis upon which I could recuse.

Particularly because no party in the case sought Judge Batchelder's recusal -- and, as she notes in her opinion, no member of the court suggested her recusal before issuance of the public opinion -- Judge Martin's opinion looks like petty payback for Judge Batchelder's report as acting chief judge finding merit in misconduct complaints against Judge Martin for mishandling two high-profile cases when he was Chief Judge of the Circuit. Bill Batchleder's occupation is hardly a secret, and if the Ohio Secretary of State did not think his pending election contest as a GOP candidate justified recusal, I do not see why this should have been an issue. There is no reason for one judge to impugn the integrity of another for failing to recuse when no recusal motion was filed. If Judge Martin was really so concerned about the appearance of a conflict caused by Judge Batchelder's failure to recuse, he should have raised this matter privately before impugning one of his colleagues in public. Making public accusations of this sort may have precedent on the Sixth Circuit, as Martin notes in his opinion, but that hardly justifies his dissent (and it is regrettable that three other judges, Daughtrey, Cole, and Clay, joined the opinion).

Had a recusal motion been filed, however, I think the issue is much closer than Judge Batchelder suggests. While she is certainly correct that all voters have an interest in the fair and impartial administration of the election, it is also true that the Ohio GOP believed it could obtain partisan advantage from its lawsuit. Forcing the Secretary of State to provide mismatch information to county election boards would have made it easier for the Ohio GOP to challenge potentially ineligible voters, and the Ohio GOP clearly believed that this would inure to their net benefit this November, when Bill Batchelder is standing for re-election. Thus, I think one could reasonably argue that Bill Batchelder had "an interest that could be substantially affected by the outcome of the proceeding" that could have justified Judge Batchelder's recusal.

Charlie (Colorado) (mail):
I wonder if the argument that there's no reason to believe that preventing voter fraud disproportionately helps Republicans might not be based on a counterfactual assumption? It seems the Ohio Democratic leadership is fighting enforcing the election laws pretty hard.
10.18.2008 2:20pm
Chico's Bail Bonds (mail):
A party asking a judge to recuse herself based on the "impartiality may be reasonably questioned" standard is pure idiocy. There is no better way to guarantee losing a case than to publicly question the integrity of the judge deciding it. This is especially the case where the decision to recuse is as a practical matter unreviewable. That your entire analysis turns on the fact that the Secretary of State's lawyer did not commit malpractice by filing a recusal motion, is quite telling.
10.18.2008 2:44pm
Steve Lubet (mail):
Excellent analysis, Jonathan. Judge Martin definitely should have raised the issue privately with Judge Batchelder before scolding her in public.

On the merits, I think that Batchelder's explanation is awfully weak. She comes painfully close to saying that there was no "reasonable question" about her impartiality because both she and the plaintiffs are in favor of fair elections. On that reasoning, no judge would ever be disqualified for the appearance of a conflict.
10.18.2008 3:01pm
Bryan Price (mail) (www):
IIRC from my days living in Ohio, this kind of thing seems to happen with frequency there.
10.18.2008 3:23pm
John (mail):
"the Ohio GOP believed it could obtain partisan advantage"?

Is that different from the GOP believing it could merely obtain an advantage?
10.18.2008 3:25pm
Angus:
Are we certain that no one on the 6th circuit privately asked Batchelder if she would recuse herself?
10.18.2008 3:37pm
Gabriel Malor (mail):
As I wrote about Judge Martin's spiteful remarks when the opinion was issued:

This is where the veil drops. To that point all the judges had been pretending that this dispute is about protecting voters. Over and over the judges had emphasized that the key to the HAVA provisions involved in this case is that a fraudulent vote cancels out a legitimate one.

[Judge Martin] makes clear that the real issue, as far as he is concerned, is determining the outcome of the election.

It blinks reality to say that the outcome of this case will not have a "substantial" effect on Ohio's elections and thus on [the judge's husband's] re-election prospects.


I'm pleased to see that Judge Batchelder chooses to remind Martin that the point of the case is to protect voters, not decide the election. Judge Martin should be ashamed not only for lashing out at Batchelder, but for finishing with this outrageous screed directed at Judge Griffin:

But I find this all particularly ironic because Judge Griffin has said nothing about this, while he decided to publicly "object" to the panel majority's procedures in his panel dissent. Specifically, he object to the fact that Judge Moore and Judge Bright, a distinguished member of the Eighth Circuit, "decided to ignore the en banc petition and issue their order" in "violation of the practices of our court." Indeed.



And if we are going to talk about what violates the practices of our court, then I can think of no better example than Judge Griffin's decision to impugn a colleague — along with a visiting Judge! — on essentially no basis whatsoever. That said, this is not the first time this sort of thing has happened, so maybe he is right, and that kind of behavior can be considered one of the "practices of our court." I dissent.


That emphasis is in the original, BTW.
10.18.2008 3:37pm
Obvious (mail):
How could anyone but Batchelder and Martin know whether or not Martin DID raise the issue with Batchelder before scolding her publicly?
10.18.2008 3:38pm
pireader (mail):
Professor Adler --

A political party makes an unusual plaintiff. Suppose the plaintiff were a corporation. In your view, should the judge have recused herself if her husband were a fairly-senior middle manager at that corporation?
10.18.2008 3:39pm
MS (mail):
I'm with Angus and Obvious. The judges of this circuit have shown no ability to self-censor in public. I'd bet that several angry memos about recusal circulated before this opinion issued.
10.18.2008 3:49pm
corneille1640 (mail):
Sorry to go off topic, but are judges ever accused of recusing themselves merely to avoid having to do the work of being a judge, say, for example, if it's a complicated case and the judge just doesn't want to spend the time hearing it?
10.18.2008 3:50pm
Jonathan H. Adler (mail) (www):
Angus/Obvious --

In a footnote to her opinion, Judge Batchelder writes: "Neither party moved for my recusal prior to, during, or since our en banc consideration; nor did any member of this court make any such suggestion prior to the public issuance of this opinion." To my knowledge, this claim has not been disputed.

Pireader --

I would think that would be grounds for recusal in most instances. As I recall, a similar issue came up in the Microsoft antitrust litigation because then-Chief Justice William Rehnquist's son did legal work for Microsoft. He did not recuse, however. So there may be rare instances in which that sort of relationship might not requre recusal, but I am not sure what those circumstances might be.

Steve --

I agree that Judge Batchelder's reasoning is potentially overbroad. I wonder whether her view is influenced by the norms in Ohio, where judges are elected and recusals are fairly rare.

JHA
10.18.2008 3:56pm
DangerMouse:
Unless Judge Martin is claiming that only Republican candidates will benefit from preventing vote fraud...

That's really it. Only Republicans benefit from preventing voter fraud, because by and large it's Democrats who are in league with voter fraud organizations like ACORN.
10.18.2008 4:09pm
John P. Lawyer (mail):
Prof. Adler,
Thanks for the astute commentary. Though you might not go this far, Judge Martin is a results-orientated disgrace to the federal judiciary. (Not unlike a judge I clerked for, who too was a disgrace in that regard). Having witnessed the pettiness of federal judges (especially those that sit on the courts of appeals) up close, Judge Martin's opinion hardly surprised me.
10.18.2008 4:26pm
Shertaugh:
Perhaps if a voter suppression suit is filed (assuming such circumstances arise), the plaintiffs will take JA's tip and move for Judge B's recusal.
10.18.2008 4:27pm
Lenny:
Gabriel Malor,

Like everyone else here, I have my own thoughts about whether Judge Martin handled this correctly, and I certainly am not going to take issue with anyone else's opinion.

But I do take issue with you attacking Judge Martin for his willingness to drop the pretense and say what everyone else was thinking - this case was not at all about voters. It was about votes, and more importantly, which party gets more votes. The case was most certainly about the outcome of the election - the Ohio Republican Party knew that, Brunner knew that. Why should the judges act as is the case is about something that neither party believes? This is not to say that the judges should have decided it on that basis (which, given the party line split, it appears they did), but they do not have to feign naivete. i suspect it was in this context that Judge Martin decided to do what he did. This was a political case, and Judge Batchelder is a notoriously political animal.
10.18.2008 4:30pm
MJG:
From my experience (and reading of the law) Judges are supposed to recuse themselves on their own motion. I don't think I buy the "it's hardly a secret" rationale; especially since the grant of a rehearing en banc and the decision both came out at the same time on Tuesday. (Batchelder was not on the original panel.) In those circumstances, it seems like it should be on the Judge to recuse herself rather than wait for a party to make a motion.

And I think you mischaracterize a bit of Judge Martin's admittedly caustic dissent: the context of Judges airing their views was in reference to all the arrows previously slung.

Finally, not sure if your view of the standard is correct. It's an objective standard, and the idea is simply that Bill Batchelder is both a Republican and running for reelection. The statute on impartiality roughly collapses the Judge and their spouse in the analysis, and it's my understanding that several Ohio Judges have running for reelection have recused themselves in similar state cases. Obviously there, you could make the same claim: there's no conflict because all I care about it stopping fraud and voter fairness!

But it strikes me as unseemly not to recuse oneself in the biggest voter challenge case in the country that happened to be brought by the party that your spouse belongs to and is a leader within. It's a separate issue whether a dissent is the right forum, but on the merits, it seems tough for me to think anything different. I'd be curious what some prof. responsibility scholars might think.
10.18.2008 4:33pm
Angus:
The sequel: the state GOP is now going to argue the same case in front of the Ohio Supreme Court, which they know will find in their favor regardless of the merit. That court, of seven elected Republicans, is so far in the tank I'm not sure why they are bothering to schedule oral arguments.
10.18.2008 4:39pm
MJG:
Also, this is what I took issue with from Judge Batchelder's opinion:


In short, there is no basis for any claim that enforcement of the voter-registration laws affects my husband differently from any other candidates because he is a Republican, or that discovery of voter fraud is more beneficial to Republicans than to others.


I could be misreading the dissent, but I thought the issue was not that he caused her more of a conflict than if her spouse had been, say, an independent or democrat, but it was simply that he was a candidate. The fact that he is a republican was tied to the fact that the Ohio Republican Party was a named plaintiff (and the dissent throws out a few theories on that of varying persuasiveness).

But I thought the point was that it was a big election case and her husband is running for reelection, not solely that he was a republican (though it was the Republican Party who was suing and thus thought it had an interest in the outcome). I could be wrong that that's what the dissent had in mind, but that's my view. If your spouse is a candidate, you probably ought not to be deciding the case on either side.
10.18.2008 4:41pm
ed (mail) (www):
Hmmmm.

Pity we don't have a court where all the judges recuse themselves.
10.18.2008 5:12pm
Steve Lubet (mail):

I agree that Judge Batchelder's reasoning is potentially overbroad. I wonder whether her view is influenced by the norms in Ohio, where judges are elected and recusals are fairly rare.


I have no idea what influences Judge Batchelder, but:

(1) Recusal is governed by a federal statute and the Code of Conduct for United States Judges; local customs in state court should not matter; and

(2) state judges are elected in Pennsylvania, but Judge Rendell doesn't have any problem complying with the federal statute.
10.18.2008 5:16pm
Cornellian (mail):
Had a motion to recuse been made, she probably should have granted it. But if no party asked for recusal, then it's none of Martin's business.
10.18.2008 5:44pm
Cornellian (mail):
Now that I think of it, the other thing Batchelder could have done is speak up when the case came before her and say something like "counsel, just so you know, my husband is a candidate, do any of you wish to bring a motion to recuse?" and if no one does, then it really is none of Martin's business.
10.18.2008 5:46pm
Dave N (mail):
The liberal icon Stephen Reinhardt (of the Ninth Circuit) is married to Ramona Ripston, the Executive Director of the ACLU of Southern California.

I am unaware of Judge Reinhardt ever recusing himself in a case where the ACLU was a party or amicus.

And God knows, I wish he would.
10.18.2008 5:46pm
Angus:
I am unaware of Judge Reinhardt ever recusing himself in a case where the ACLU was a party or amicus
If the ACLU was a party to the case, he should have recused himself. For an amicus brief, not.
10.18.2008 5:52pm
Angus:
Had a motion to recuse been made, she probably should have granted it. But if no party asked for recusal, then it's none of Martin's business.
When judges have a conflict of interest, they are expected to recuse themselves. Formally asking a judge to recuse him/herself through a motion will only give you a pissed off, biased judge (rather than just a biased one) when the judge says "no."
10.18.2008 5:54pm
Bill Dyer (mail) (www):
Prof. Adler: I compliment you on this thoughtful post, on a topic that is indeed interesting. But with due respect, I do not agree with you that "the issue is much closer than Judge Batchelder suggests."

You write that "it is also true that the Ohio GOP believed it could obtain partisan advantage from its lawsuit." Well, so Secretary of State Brunner would characterize the case, in an act of double-talk (because it presumes that there is a need to protect the plaintiffs from her actions, while she simultaneously insists that she's doing nothing illegal or improper).

On its face, however, this is a lawsuit not to obtain a partisan advantage, but to require Secretary of State Brunner to do her job. Judge Batchelder is absolutely correct to note that HAVA is intended to promote the integrity of the voting process for all candidates and all voters.

If we indulge in your method -- in which one is permitted to impute secret, additional motives not shown in the pleadings -- rather than focusing on the pleadings (and their specification of the nature of the acts complained of, the damage alleged, and the relief sought), then there is no judge who is ever safe from recusal attacks.

In my 28 years of practice, a large majority of the recusal motions I've seen have been tactical. It's very bad public policy to shift the playing field to a "if it's arguably even close, then recuse" standard because that encourages tactical attacks. The personal pettiness you posit on Judge Martin's part may be true, but it may instead be, or also be, that he simply wanted to reduce by one the number of en banc judges joining in the majority opinion.
10.18.2008 6:39pm
ex-clerk:
If Judge Martin was really so concerned about the appearance of a conflict caused by Judge Batchelder's failure to recuse, he should have raised this matter privately before impugning one of his colleagues in public.

Judge Martin did raise the issue in private before "impugning one of his colleages in public." Before any published opinion is filed in the Sixth Circuit, it is circulated to all of the court's judges for review. Accordingly, Judge Batchelder would have received a copy of Judge Martin's proposed dissenting opinion accusing her of misconduct before that opinion was published.

I'll also note that we have no idea whether or not Judge Martin did in fact privately raise this issue with Judge Batchelder before circulating a proposed dissent. That's the definition of the word "private," we, the public, don't get to know what really went on between Judges Martin &Batchelder.
10.18.2008 6:41pm
Ohio Lawyer:

Unless Judge Martin is claiming that only Republican candidates will benefit from preventing vote fraud, Bill Batchelder's candidacy is no more affected by this litigation than is the candidacy of every other individual on that ballot.

Oddly, this completely undercuts and standing argument the Republicans could have made. If they are just voters, then they have no more interest than any other citizen.

But Bill Batchelder will benefit from the Republican's voter suppression efforts, and his wife helped. If this had been a $100,000 tort cast against AT&T, and if Judge Batchelder had even $1.00 in an S&P index fund, she would have had to recuse herself. She certainly has more interest in helping the efforts of the party/litigant that her husband is a leader in.


I wonder whether her view is influenced by the norms in Ohio, where judges are elected and recusals are fairly rare.

Generally true, but Ohio Supreme Court Justices Stratton and O'Connor had the integrity to recuse themselves from election cases that could affect their races this year. Maybe Batchelder should learn from them.
10.18.2008 6:55pm
MJG:
Cornellian:

Two issues. One, the federal statute requires judges to recuse themselves regardless of whether or not any party raises the matter.

And second, there was no opportunity for Batchelder to be in front of any lawyer; the panel issued an opinion last Thursday, a petition for rehearing en banc went around over the weekend, and on Tuesday the full court voted to grant en banc and also voted to reinstate the TRO. There was no oral argument or special briefing. According to the Moritz election law center, the Brennan Center filed an amicus brief, but that seems about it.

So that's why, if I was the judge, I would have thought this circumstance was unusual and would have (probably, you never know) taken extra care; the lawyers really didn't have a chance to identify the possible conflict and ask for recusal.

And the tactics probably wouldn't have made much of a difference. The vote was beyond being influenced by one judge's vote.
10.18.2008 7:21pm
Ohio Lawyer:

Bill Batchelder . . . is not a named party to this lawsuit, and is one of literally hundreds of candidates on the November ballot in Ohio. Unless Judge Martin is claiming that only Republican candidates will benefit from preventing vote fraud, Bill Batchelder's candidacy is no more affected by this litigation than is the candidacy of every other individual on that ballot.


When weighing the equities of the TRO request, one of the questions the court must answer is whether this is a legitimate attempt to prevent fraud or a voter suppression effort. That's a question in which all Republican candidates have a stake. In deciding whether she should recuse herself, Judge Batchelder clearly took a position on that issue.

She should have followed the lead of Ohio Supreme Court justices Stratton and O'Connor and recused herself.
10.18.2008 7:36pm
Greg Q (mail) (www):
Angus babbles,
the state GOP is now going to argue the same case in front of the Ohio Supreme Court, which they know will find in their favor regardless of the merit. That court, of seven elected Republicans, is so far in the tank I'm not sure why they are bothering to schedule oral arguments.

That would be the State Supreme Court that ruled, 4 - 3, that Brunner was right to let people register and vote on the same day (an excellent way to encourage fraudulent votes), despite an Ohio law saying yo umust register 30 days before you vote?

What deranged world do you live in?
10.18.2008 7:37pm
Greg Q (mail) (www):
Ohio Lawyer makes yet another "interesting" argument:

Oddly, this completely undercuts and standing argument the Republicans could have made. If they are just voters, then they have no more interest than any other citizen.


Because, of course, no voter would have an interest in having an honest election.

Jerk.

There is absolutely no difference between illegitimately blocking a legal voter from voting, and illegitimately allowing an illegal voter to vote. Because every vote cast by the illegitimate voter cancels out the vote of a legitimate voter.

No, I take that back. There is one difference. With the legitimate voter being blocked, we know who was screwed. With the illegal voter we don't know who was screwed.

But that's the only difference. If you care about people's right to vote, you must be opposed to fraudulent voters.
10.18.2008 7:46pm
CiarandDenlane (mail):
It does seem a close question.

Judge Batchelder puts the Democratic-Republican point in an unfortunately tendentious way that seems to assume before adjudication the point of the plaintiff (the party she's suspected of favoring) that its case is all about "discovery of voter fraud" and that there's no reason to believe Republicans are more interested than Democrats in that. First, as some commenters suggest, perhaps they are. Second, I assume that, as in a lot of instances, there are a variety of goals that are in some tension. Sure, we want to prevent voter fraud, but we also want to make sure that people don't lose their right to vote because of a clerical error that creates an appearance of a mismatch. And we also want to allow hard-working bureaucrats to spend their time and our money on whatever other tasks they think are more important than tracking down mismatches. It doesn't follow that folks who put a relatively higher value on the second and third of those goals than on the first are utterly uninterested or affirmatively in favor of voter fraud; they just weight the balance differently. And, unfortunately for Judge Batchelder, as an empirical matter based at least on who is suing whom, it does seem that Republicans place a relatively higher value on the first of those goals than do the Democrats.

Her other point strikes me as the closer one. Voters and candidates both participate in the political system, and it is not immediately clear that having a candidate spouse is any stronger ground for recusal than having a voting spouse. It's not like state legislator is some huge plum, at least not for everyone (my attitude, based mostly on some unsuccessful attempts in a past life to avoid being tagged it to run a homeowners' association, is " . . . and second prize is two terms as a state legislator"). For that matter, non-voter non-candidates can have stakes, maybe even bigger ones (if Judge Batchelder was a Michigan resident and her husband was on Ohio's death row, would she have to recuse herself from an Ohio election case where one, but only one, of the gubernatorial candidates had promised to commute all death sentences?).

The actual case seems a tough call, because (as Angus and others mention) judges are supposed to recuse themselves without waiting for a party motion where it is warranted; because (for reasons related to the question raised by Corneille1640) judges are not supposed to recuse themselves needlessly to avoid the work of being a judge, which sometimes requires tough decisions they'd rather not make; and because it was a call that had to be made very quickly without as much time for reflection and research as Judges Batchelder and Martin might have wanted.
10.18.2008 7:50pm
Assistant Village Idiot (mail) (www):
Greg Q - not to worry. Ohio Lawyer just wanted a chance to say "voter suppression" twice. The surrounding content is all air, delivered in a tone of outrage..
10.18.2008 8:51pm
Greg Q (mail) (www):
CiarandDenlane writes:

Sure, we want to prevent voter fraud, but we also want to make sure that people don't lose their right to vote because of a clerical error that creates an appearance of a mismatch.

Repeat after me "provisional ballot." Enforcing matching won't lead to honest voters losing their votes. They may have to work a little bit harder to vote, as a cost of screwing up their Registration. But they will still get to vote. It's the dishonest voters who are stopped by this.

Which makes it interesting that Ohio Democrats (and non-Ohio Democrats) are fighting so hard to prevent it.
10.18.2008 10:23pm
news reader:
...as a cost of screwing up their Registration...


Who screwed up their registrations? Take a look at another midwestern state.

From the Washington Post: “Thousands Face Mix-Ups In Voter Registrations”, p.3:
Among the errors with Wisconsin's database, which has been fully in place just since August, are incorrect ages for 95,000 voters, all of whom are listed as 108 years old. If no birth date was available when names were moved into the electronic system, it automatically assigned Jan. 1, 1900.

Alongside a 22% mismatch rate in the Wisconsin databases, there's also recent news that the Wisconsin GOP has started advertising "Help Wanted" for work in Milwaukee as a polling-place goon.

The voting rights act states:
(2) No person acting under color of law shall—

(B) deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election; or

All the same, law or no law, the GOP goons are fully expected to act exactly as they did in 2004 and 2006.

Many people will be wrongfully denied a vote.
10.18.2008 10:56pm
MarkJ (mail):
newsreaders,

"GOP goons?" Where? Who? Name one.

Old boy, I'd believe your whining a bit more if the GOP had its own version of ACORN. But we both know that's not the case, don't we?
10.18.2008 11:07pm
news reader:
The Brew City Brawler notes a Washington Post article:

Jonathan Waclawski, the party's election day operations, wrote in a Sept. 8 e-mail that he needed contact information for people "who would potentially be willing to volunteer ... at inner city (more intimidating) polling places. Particularly, I am interested in names of Milwaukee area veterans, policemen, security personnel, firefighters etc. ... If you have any connections with such organizations, please pass that information on."


What will they be doing? Well, if RPW dirty tricks during the 2004 election are any indication, we can expect them to help mount spurious charges against voters, offer misleading instructions to voters and generally do all they can to sow confusion and create long lines that may dissuade folks from casting their ballot.


During recent elections, reports of unlawful polling place activity were also received from Cleveland, among other places. I'd have to search to dig up those reports from past elections. But what happened has been documented.
10.18.2008 11:30pm
TomT (mail):
Republican voter suppression??? GOP goon??? I give up!!! These people can't be arguing in good faith. No reasonable person could look at the current state of the voting process and make these statements with a straight face. You can't be serious? Can anyone with half a brain claim any equivalence here? You marginalize legitimate proven concerns and you exaggerate all unproven allegation. This goes beyond partisan politics and borders on lunacy. ALL I WANT IS A FAIR ELECTION! Do you want to turn this country into a banana republic? The only goons I see here are the people making these comments.
10.19.2008 12:02am
TomT (mail):
More unproven allegations. You people need to stop projecting your slimy tactics onto other people. Just because you believe that the ends justify the means, doesn't mean we do. Do you really believe that these people are being instructed to actively sabatoge the voting process? Stop being paranoid and think this thing through. You wouldn't want to send frail people into some of these neighborhoods.
10.19.2008 12:15am
ThomasD (mail):
A political party makes an unusual plaintiff. Suppose the plaintiff were a corporation. In your view, should the judge have recused herself if her husband were a fairly-senior middle manager at that corporation?

This is an inapt analogy.

The issue at question is election law, not any specific election.

The better analogy would be to suppose the plaintiff were a corporation seeking a ruling on corporate law and the judge's husband was a fairly-senior middle manager at another corporation. Yes, any such ruling could impact his interests, but would it rise to the level of conflict of interest.
10.19.2008 12:24am
TomT (mail):
I live in the city of Detroit and can show you some outrageous stories of the incompetence of the city clerk concerning recent elections. Most of it was unintentional and just due to incompetence but you want me to believe that a city which is fairly incompetent in every area of governance would be efficient at running election if it wasn't for those Republican poll watchers. Please stop and think about these things for a minute.
10.19.2008 12:25am
news reader:
Did you read the rest of what the Brew City Brawler wrote in the post I linked?

See “Report from Volunteer Attorneys Observing Voting throughout Southeastern Wisconsin on November 2, 2004”, pp.3-4 (contained within Hearing on the Conduct of Elections and Proposals for Reform, U.S. House of Representatives, Committee on House Administration, pp.151-2 (pp.153-4 in PDF)):

The primary aspects of the carefully planned GOP suppression effort included:

• Placing at least one person behind the election inspectors in targeted wards with a handheld electronic device (primarily Palm Pilots or Blackberries) to stare at each voter while entering their name and address in the device as they identified themselves to the pollworkers and received a ballot.

• Paying individuals $160 to wear orange "HAVA Volunteer" T- shirts and patrol polling places. In large part these individuals (who were not volunteers) knew nothing about the Help America Vote Act, and several wrongly suggested that HAVA required an alreadyregistered voter to produce identification in order to vote.

• Impersonating authorities at the polling places. The Reports reflect instances of orange-shirted observers stating that they were authorities, and instances of persons claiming to be "election officials" and giving out incorrect information about the registration process.

• Walking up and down voting lines with printed lists in hand and suggesting that persons "not on the list" were not allowed to vote.

• Using attorneys to lodge challenges to voters pursuant to S 6.925, Wis. Stats. In many cases Republican attorneys would lodge a challenge, disrupt the voting process, and then abandon the challenge, after forcing a voter to answer questions under oath, by refusing to execute sworn statements supporting the claimed challenges.

• Challenging the authority of election inspectors during every step of the election day process, including: (a) challenging the use of special deputy registrars for same day registration (despite an October 27, 2004 City of Milwaukee Elections Commission resolution authorizing the process); (b) challenging inspectors' attempts to continue to process votes during machine breakdowns; (e) asking an inspector to sign a form stating that a machine was not inspected; and (d) challenging the use of volunteers to help process same day registration cards.

• Using law enforcement agents to harass Election Protection volunteers attempting to assist voters standing in line. For example, at about 5:30 p.m. at Holton School, four men, one with visible handcuffs, walked through the polling place and told Election Protection volunteers not to assist voters attempting to locate the correct polling place.

• Threatening to "call the authorities" if election inspectors did not act as instructed by Republican attorneys.

• Challenging any absentee ballot that did not have a Wisconsin- return address in the certificate, despite the fact that an out- of—state return address is legal and appropriate for out-of- state absentee voters.

• Challenging valid student registration with photo IDs matched to student directories, and thereafter challenging any student who corroborated another student's residence.
10.19.2008 12:38am
Assistant Village Idiot (mail) (www):
TomT - It's a mind-set. I used to have it when I was a liberal. You believe deeply that your opposition is capable of great evil. You impute the most ignoble of motives to them. Your interpretation of all actual events follows from there.

In fairness, I know conservatives of similar mind-set, willing to believe unsubstantiated rumors that fit their narrative. But I don't think it's 50-50 on the national scene.
10.19.2008 12:44am
Fat Man (mail) (www):
If it were not for the legions of the dead, and the Medicaid mill nursing homes stuffed with with old folks who don't know their children's faces anymore, the Democrat party would have a hard time ever winning any elections.
10.19.2008 12:45am
Dave in Texas (mail) (www):
Martin's outburst confirms one thing--

It is general knowledge among Democrat officials of every stripe that virtually all (or literally all) of the voter fraud going on is composed of fraudulent registrations on the Democrat side.

If Martin is seriously convinced that her Republican husband has a better chance of winning if the voter fraud is addressed, then he's admitting what it is.

Someone needs to point this out, more eloquently I hope.
10.19.2008 1:19am
FedkatheConvict:
I happen to be a resident of south-east Wisconsin.

No doubt, Martin and "news reader" agree with the son of US Representative Gwen Moore and the son of former Milwaukee Mayor Marvin Pratt in slashing the tires of Republican poll workers.

Its no secret that there is rampant election fraud in the south-east Wisconsin (Milwaukee) area and its at disgrace that the sitting Democratic governor refuses to sign legislation that would implement some simple safeguards. Wisconsin's system of same-day registration and voting, coupled with weak ID requirements (you only need a recent utility bill) make the process very easy to game.

Bonus question: If Democratic/ACORN operatives impede the ability of Republicans to get to the polls; is that voter supression?
10.19.2008 1:42am
Nathan Hall (mail):
News Reader,

The allegations of "Volunteer Attorneys Observing Voting," if true, are quite disturbing. Let us suppose that the GOP's intention actually is to suppress voting, and we should therefore reject their solution. What is your solution to the problem? Do you think people should be allowed to vote, unchallenged, without producing any evidence that they live in the state, or that they haven't already voted? Even if the Republicans have nefarious motives, there are also groups on the left that seem willing to use lax enforcement of election laws to unfairly influence the outcome. How would you stop them?
10.19.2008 2:05am
Al Maviva:
How 'bout this Dave.

To argue that a Republican candidate will be unfairly benefited if an election is free of fraudulent voting, one must first accept the premise that fraudulent elections will benefit the Democrats, and that this situation is both fair and the norm.

Hey News Reader - I guess that Republican dominance in Wisconsin politics is really getting to you, huh? You may want to get after the Big Bad Republican Machines in Chicago, Philly, NYC, Boston and LA while you're busy rooting out Republican vote fraud.
10.19.2008 3:44am
AlanDownunder (mail):

But this case is not about candidates. It is about voters.


No doubt the Ohio GOP shared this high-mindedness with her Honor, and was equally disinterested and public-spirited.

Judge Martin was rudely and unpardonably cynical, not to mention uncollegiate.
10.19.2008 10:03am
Greg Q (mail) (www):
"news reader":

Gee, apparently you missed the stories about homeless people being offered cigarettes to vote, by Democrat Party activists who told them how to vote, took them to the polls to register on election day, and occasionally were caught going into the polling booth with the people to make sure they voted the correct way?

Or is all that vote fraud good, because it's by Democrats?

A State that allows same day registration, and doesn't check photo ID (because the scum of the earth Democrat Gov. has consistently vetoed laws taht would require it), is a complete invitation to vote fraud. Given that the Democrats have fought hard to make it that way, no Democrat there gets to complain about Republican efforts to cut down on the fraud you people created.
10.19.2008 5:44pm
AlanDownunder (mail):
The only question here is whether this was a vote fraud case or a vote suppression case. I think Republicans like David Ignatius, on the one hand, and Bradley Schlozman, on the other, know the likely answer to that.
10.19.2008 8:02pm
news reader:
....who told them how to vote... ...and occasionally were caught going into the polling booth...


Not only did I miss those two specific allegations, but also apparently Republican Party of Wisconsin chairman Richard Graber missed them too. He stated in a 2001 press release:
Last year, Milstein was caught on video handing out packages of cigarettes to homeless men in Milwaukee in exchange for casting absentee ballots in the presidential election.

"The Republican Party of Wisconsin is pleased that the Milwaukee County District Attorney moved forward on this case. However, Connie Milstein committed 10 acts of felony election fraud according to Wisconsin law, but was let off with a slap on the wrist.


The Journal-Sentinel reported only:
Milstein was captured on a video report aired on WISN-TV (Channel 12) over the weekend saying she was busy going to Milwaukee shelters rounding up voters. Men from the Rescue Mission told Channel 12 they were offered single packs of cigarettes after they voted and weren't told whom to vote for.

(Emphasis added.)

Anyhow, never mind the non sequitor about stopping these 10 serious violations of election law with a photo id requirement. Assume —for the sake of argument— that a photo ID requirement would stop someone from handing out cigarettes and rides to the polls.

UWM-ETI's widely-cited study found:
The Employment and Training Institute study, which examined individual driver's license records and state ID files from the State of Wisconsin, found 558,000 residents (in the age groups 18-24 years, and 35 and older) likely to face problems voting under Voter ID laws. This includes:

* 177,399 elderly persons aged 65 and older with neither a driver's license nor a state ID,
* 98,247 residents ages 35-64 with neither a driver's license nor a state ID,
* 198,537 young adults (ages 18-24) without a valid driver's license, and
* 83,981 students (living in 10 Wisconsin communities with large college populations) who do not have a driver's license with their current address on it.
(The population ages 25 through 34 was not studied.)


So, in order to stop 10 people from getting cigarettes and a ride to the polls, you want to make life tough for almost 180,000 elderly people.

In addition, as an EAC-commissioned study found, there's a correlation between increasingly severe ID requirements and lower voter turnout.
10.19.2008 10:04pm
news reader:
...What is your solution to the problem?...


Nathan Hall,

Serious election reform efforts are counter-cyclical. Other than emergency fixes for the most severe problems, you just don't change the system this close to an election. And it's worth taking a good look at exactly what happens this November.

That said, I personally favor returning Milwaukee to a clean, hard-working Socialist administration.
10.19.2008 10:20pm
Greg Q (mail) (www):
"news reader"

If people don't have state issued photo ID help them get those id. Don't use that as an excuse for allowing vote fraud.

Oh, I forgot. That's what you would do if you gave a damn about those people. You don't. You just want an excuse to allow continued vote fraud.

If you really believe the problem is only 10 illegal votes, then you are as dumb as you are dishonest.
10.19.2008 11:50pm
Colin (mail):
Greg Q,

Angus babbles

Jerk.

you are as dumb as you are dishonest


Please do us all a favor and page down to see the VC's comment policy. While there are certainly ruder and cruder comments being made today, maybe we can keep this particular thread from degenerating.
10.20.2008 1:50pm