Boots & Sabers

The blogging will continue until morale improves...

Category: Law

SCOTUS Rules In Favor of Civil Rights in Bruen

They ruled that New York’s gun laws violate the 14th Amendment.

Held: New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.

 

[…]

 

A final word on historical method: Strictly speaking, New York is bound to respect the right to keep and bear arms because of the Fourteenth Amendment, not the Second. See, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 250–251 (1833) (Bill of Rights applies only to the Federal Government). Nonetheless, we have made clear that individual rights enumerated in the Bill of Rights and made applicable against the States through the Fourteenth Amendment have the same scope as against the Federal Government.

 

[…]

 

At the end of this long journey through the Anglo-American history of public carry, we conclude that respondents have not met their burden to identify an American tradition justifying the State’s proper-cause requirement. The Second Amendment guaranteed to “all Americans” the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions

 

[…]

 

The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” McDonald, 561 U. S., at 780 (plurality opinion). We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.

Supreme Court Rules Supports Religious Rights

Good news!

WASHINGTON — The Supreme Court ruled Tuesday that Maine can’t exclude religious schools from a program that offers tuition aid for private education, a decision that could ease religious organizations’ access to taxpayer money.

 

The 6-3 outcome could fuel a renewed push for school choice programs in some of the 18 states that have so far not directed taxpayer money to private, religious education. The most immediate effect of the court’s ruling beyond Maine probably will be in nearby Vermont, which has a similar program.

California Rules that Bees are Fish

SMH.

(WJW) – A California appeals court has ruled that four species of bees are now legally considered fish.

 

[…]

 

“We next consider whether the commission’s authority is limited to listing only aquatic invertebrates,” the ruling stated. “We conclude the answer is, “no.” Although the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the Legislature in the definition of fish in section 45 is not so limited.”

Abort Democrat policies, not babies

Here is my full column that ran in the Washington County Daily News last week:

The issue of abortion had been simmering on the back burner of the midterm election as the nation awaited the Supreme Court’s ruling on Dobbs v. Jackson Women’s Health Organization. After the egregious breach of trust and decorum when someone leaked the draft ruling, the issue may still be on the back burner, but it is boiling over.

 

While the leaked ruling is a draft and not the final version, it does indicate that the Supreme Court has decided to reverse and strongly reverse the terrible Roe v. Wade ruling in the same virtuous spirit as Brown v. Board of Education. Justice Samuel Alito’s draft is a masterpiece of legal reasoning written in a strident prose designed to firmly correct the court’s 50-year injustice.

 

When the Supreme Court issues its ruling, and assuming that it will be to reverse Roe, it will not make abortion illegal or legal in the United States. Such a ruling will simply divorce the federal courts from making that decision for anyone and restore the issue to the elected branches of state government to decide. Roe was a massive usurpation of rights and responsibilities left to states in our federal Constitution and hopefully Dobbs will return the issue to the appropriate public policy forum.

 

Several liberal states have already passed laws legalizing abortion up to the point of infanticide. Other states have been increasingly restricting abortions. In both cases, states have been acting to ensure that their state laws will reflect the will of the people should Roe ever be overturned.

 

In Wisconsin, attempts to change abortion laws for the better or the worse have failed to make it into law. Consequently, should the Dobbs decision reverse Roe, Wisconsin’s current abortion law passed in 1849 will be in effect. That law makes it a felony to conduct or assist in an abortion in all circumstances except in the case that the mother’s life is at risk. For those of us who ardently oppose killing babies, the Wisconsin law is ideal. In a politically divided state like Wisconsin, we are in the minority. Public opinion polls for years have shown that a majority of people support abortion very early in a pregnancy with steadily declining support for abortion as the pregnancy progresses with late-term abortions being opposed by a strong majority of people. Should Roe be overturned, abortion policy will no longer be a theoretical policy plank in a party platform and Wisconsin’s elected officials will be responsible for their positions. Earlier this year, the Republicans failed to advance a bill that would have revise Wisconsin’s abortion statute to make abortion legal up until the point that the baby’s heartbeat is detectable. The abortion abolitionists and the secretly pro-abortion wings of the Republican caucus united to bottle up the bill without a vote. It may be an untenable position for Republicans to hold in the long term in a politically divided state. For the sake of the babies, let us hope that they can hold it.

 

While abortion policy is critically important to the thousands of babies who are murdered in Wisconsin every year, it is not as powerful a political issue as those on either side of the issue would like to think it is. There is a sliver of the electorate for whom abortion is the most important, and sometimes only, issue that decides their vote. Polls and electoral results in Virginia and Ohio seem to indicate that the anti-abortion single-issue voters outnumber the pro-abortion single-issue voters by a smidge. But either way, these voters tend to be extremely reliable voters and abortion stances are already strongly divided along party lines. There are a few pro-abortion Republicans left, but there are almost no anti-abortion Democrats to be found anymore. In other words, these voters were already very likely to vote, and their votes were already baked into the political projections.

 

If anything, Democrats are desperately hoping that a vigorous debate about abortion will distract some voters from the fact that Democratic policies are ruining our country. Runaway inflation not seen since the early 1980s is destroying our quality of life and erasing the economic gains of the middle and lower classes. Gas prices are through the roof. There are shortages of necessities like baby formula. Rising housing prices and interest rates are robbing young families of the dream of home ownership at the same time as rent is rising. Criminals are gutting neighborhoods.

 

If Democrats are hoping that a reinvigorated debate about abortion will save them from an electoral correction for their disastrous policies, they are mistaken. At the end of the day, most people care far more about themselves than they do about tiny innocent unwanted babies, but that is why abortion exists in the first place.

 

Federal Appeals Court Overrules California Gun Law

Good!

A federal appeals court ruled Wednesday that California’s ban on the sale of semiautomatic rifles to adults younger than 21 was unconstitutional.

 

In a 2-1 decision, a panel of the U.S. 9th Circuit Court of Appeals found that the 2nd Amendment “protects the right of young adults to keep and bear arms, which includes the right to purchase them.”

 

The ruling reverses a lower court’s decision not to issue an injunction to block a 2019 state law that banned the sale of semiautomatic centerfire rifles to young adults, which the appeals court called a “legal error.”

 

“America would not exist without the heroism of the young adults who fought and died in our revolutionary army,” Judge Ryan D. Nelson, an appointee of President Trump, wrote for the appeals court. “Today we reaffirm that our Constitution still protects the right that enabled their sacrifice: the right of young adults to keep and bear arms.”

 

 

Abort Democrat policies, not babies

My column for the Washington County Daily News is online and in print. Here’s a part:

While abortion policy is critically important to the thousands of babies who are murdered in Wisconsin every year, it is not as powerful a political issue as those on either side of the issue would like to think it is. There is a sliver of the electorate for whom abortion is the most important, and sometimes only, issue that decides their vote. Polls and electoral results in Virginia and Ohio seem to indicate that the anti-abortion single-issue voters outnumber the pro-abortion single-issue voters by a smidge. But either way, these voters tend to be extremely reliable voters and abortion stances are already strongly divided along party lines. There are a few pro-abortion Republicans left, but there are almost no anti-abortion Democrats to be found anymore. In other words, these voters were already very likely to vote, and their votes were already baked into the political projections.

 

If anything, Democrats are desperately hoping that a vigorous debate about abortion will distract some voters from the fact that Democratic policies are ruining our country. Runaway inflation not seen since the early 1980s is destroying our quality of life and erasing the economic gains of the middle and lower classes. Gas prices are through the roof. There are shortages of necessities like baby formula. Rising housing prices and interest rates are robbing young families of the dream of home ownership at the same time as rent is rising. Criminals are gutting neighborhoods.

 

If Democrats are hoping that a reinvigorated debate about abortion will save them from an electoral correction for their disastrous policies, they are mistaken. At the end of the day, most people care far more about themselves than they do about tiny innocent unwanted babies, but that is why abortion exists in the first place.

SCOTUS Declines SALT Challenge

It’s been a pretty good news day.

The Supreme Court on Monday declined to hear a challenge to the $10,000 state and local tax (SALT) deduction cap, a Trump-era tax law that hit the pocketbooks of wealthy people in blue states.

 

New York led a group of states including ConnecticutMaryland and New Jersey in seeking to strike down the law that limits people to deducting $10,000 of state and local tax from their federal tax bill. The cap was enacted as part of the 2017 Trump tax bill as a way to offset other cuts.

 

The states had argued that the cap improperly encroached on their taxing ability.

Airlines Drop Mask Mandates After Ruling

Wonderful.

Most major U.S. airlines are no longer requiring travelers or employees to wear face coverings on domestic and some international flights.

 

The decisions came hours after a U.S. judge on Monday overturned a federal mandate for passengers to cover their faces. The U.S. Transportation Security Administration said after the court ruling that it would stop requiring passengers on planes, trains and other public transportation to wear masks “at this time.”

 

The five largest U.S. carriers — American Airlines Group Inc., Alaska Air Group Inc., Delta Air Lines Inc., Southwest Airlines Co. and United Airlines Holdings Inc. — said they were dropping their mandates effective immediately. Use of masks will be optional for both passengers and staff, they said.

I was in the Atlanta airport this afternoon when this ruling came down. There was a noticeable buzz. What’s interesting is that in the dozens of conversations I overheard (three hour layover… ugh), I didn’t hear a single person complaining. People were wondering if and when they could take their masks off. They were saying that it was about time. They were looking forward to traveling without a mask. But nary a comment in favor of requiring masks. I’m sure there are some people who want to continue the mandate, but they are few and far between.

Hats off to the airlines for dropping the mandates so quickly. I look forward to flying sans mask later this week.

Supreme Court Rejects Evers’ Racist Maps

They sure took the long road to get there, but they got to the correct destination.

The Wisconsin Supreme Court had adopted Evers’ map on March 3, but the U.S. Supreme Court overturned it on March 23. The high court ruled that Evers’ map failed to consider whether a “race-neutral alternative that did not add a seventh majority-black district would deny black voters equal political opportunity.”

 

Evers told the state Supreme Court it could still adopt his map with some additional analysis, or an alternative with six majority-Black districts. The Republican-controlled Legislature argued that its map should be implemented.

 

The Wisconsin court, controlled 4-3 by conservatives, sided with the Legislature.

 

“The maps proposed by the Governor … are racially motivated and, under the Equal Protection Clause, they fail strict scrutiny,” Chief Justice Annette Ziegler wrote for the majority, joined by Justices Patience Roggensack, Rebecca Grassl Bradley and Brian Hagedorn.

 

The Legislature’s maps, they wrote, “are race neutral” and “comply with the Equal Protection Clause, along with all other application federal and state legal requirements.”

SCOTUS Throws Out Legislative Maps

Good. The end result may be less advantageous for Republicans, but it is right on the law. 

The U.S. Supreme Court tossed the maps because it concluded the state justices did not adequately determine whether Assembly districts in Milwaukee complied with the federal Voting Rights Act.

 

[…]

 

Federal law is complicated because those who draw election maps must not consider race in some instances but are required to do so in areas with large minority populations to ensure those voters can elect candidates of their choosing.

 

The maps the state court adopted increased the number of majority Black districts from six to seven in Milwaukee. The U.S. Supreme Court ruled the state justices had not done enough analysis to determine whether the Voting Rights Act required the creation of the seventh district.

High court rules on redistricting

Here is my full column that ran in the Washington County Daily News last Tuesday.

Last week, the Wisconsin Supreme Court handed down its ruling regarding Wisconsin’s decennial political redistricting. The majority of the court decided to adopt the maps drawn by Gov. Tony Evers. While the subject of redistricting puts most voters to sleep and the end result of the ruling is unimpactful for most Wisconsinites, the court’s action sheds a bright light on the state’s befuddling high court and the rank insincerity of politicos everywhere.

 

The redistricting process happens every decade after the annual census in completed. The purpose of the process is to redraw all of the political boundaries to reflect population changes that have happened since the previous census. Given that the process directly impacts every politician in the state, except those who are elected statewide, politicians get very worked up about it. Almost nobody else cares even though they should.

 

The rules for redistricting are fairly simple: Draw lines that create political districts that are roughly equal in population, contiguous, and do not discriminate against anyone on the basis of race or other distinctions protected by the United States Constitution. In Wisconsin, the state Constitution also requires that each Senate district contain three Assembly districts and respect municipal boundaries. The politics of redistricting are far more complex.

 

In Wisconsin, redistricting is done through the regular legislative process. The Legislature meets, listens to public input, gets feedback from constituents, debates, argues, harangues, amends, and eventually passes a bill with the new district lines. From there, the governor either signs the new lines into law or vetoes them. If the Legislature and governor are controlled by different parties, which has happened more often than not in Wisconsin during redistricting years, the result is usually that the governor vetoes the redistricting law and the whole thing ends up in court. That is what happened this time. When the Wisconsin Supreme Court decided to take the case about redistricting, which is their duty, the majority decided to ask interested parties to submit their own maps and the court would pick whichever one caused the “least change.” Through this invented rubric, subsequently tortured into “core retention,” the court chose Governor Evers’ maps. The result is that Wisconsin’s legislative districts still lean heavily in the Republicans’ favor, but not quite as much as if the court chose the maps debated and passed by the Legislature. It is impossible for anyone to draw maps that favor Democrat majorities because the liberals in the state have decided to overwhelmingly live together in a couple of relatively small geographies instead of fanning out across the state to live with people who are not like them.

 

The ruling by the high court was written by Justice Brian Hagedorn. As the only man on the court, Hagedorn has taken it upon himself to be the court’s fulcrum with three conservative women justices on one side and three leftist women justices on the other. What is impossible to discern is any guiding judicial philosophy by Hagedorn. It is not fair to call him a juridical conservative or a judicial liberal because his decision making is not consistent enough to divine a coherent philosophy.

 

In reading the decision written by Hagedorn, which I encourage everyone to do, it reminded me of something written by a high school sophomore. His childlike arguments were not rooted in law or precedent, but in his own personal sense of fairness. He whimsically brushes away law when admitting that his invented, “parties struggled with reconciling it (the court’s invented “least change” rubric) with the United States Constitution, Wisconsin Constitution, and Voting Rights Act.” They struggled to reconcile it because it is unreconcilable, yet Hagedorn persisted.

 

There are two major things wrong with Evers’ maps — one legal and one political. The legal problem is that, as Hagedorn’s ruling explains in great detail, Governor Evers determined district lines based on race. Using race to decide district lines is unconstitutional unless it is done to remedy a previous racial injustice, which no one has alleged. In this respect, Evers’ maps are a clear violation of the 14th Amendment.

 

When the 14th Amendment was written after the Civil War, it was designed to prevent racist white citizens from bottling up black citizens into a few districts to minimize their political power. Yet, this is precisely what Evers and Hagedorn did. Evers used racial considerations to create one more majority-black Assembly district by diluting black Wisconsinites’ voice in other districts.

 

The political problem with Evers’ maps is that he created them in the first place. The purpose of using the legislative process to create the maps is to ensure that they receive all of the scrutiny and visibility that the legislative process requires and allows. The Legislature’s maps were created in the light of day, debated, tweaked, and passed. Governor Evers’ maps were created in his office by a group of faceless, nameless people who were probably not even wearing masks.

 

In a republic where the people are supposed to have a voice, one solitary white man in a black robe has chosen a map drawn by another solitary white man in a gray suit. Nobody else even had a seat at the table. That is not how representative government is supposed to work.

 

The decision has already been appealed to the United States Supreme Court. In the end, the resulting district lines will matter little to anyone who is not vying for public office, but the process by which we arrive at these decisions matter is we are to preserve our civil rights.

Texas Supreme Court Strikes Final Blow to Challenge to Abortion Restrictions

Excellent. Now do it in Wisconsin.

AUSTIN, Texas (AP) — Texas abortion providers on Friday conceded a final blow to their best hope of stopping the nation’s most restrictive abortion law after a new ruling ended what little path forward the U.S. Supreme Court had left for clinics.

 

The decision by the Texas Supreme Court, which is entirely controlled by Republicans, spelled the coming end to a federal lawsuit that abortion clinics filed even before the restrictions took effect in September, but were then rejected at nearly every turn afterward.

 

“There is nothing left, this case is effectively over with respect to our challenge to the abortion ban,” said Marc Hearron, attorney for the Center for Reproductive Rights, which led the challenge against the Texas law known as Senate Bill 8.

Although Texas abortion clinics are not dropping the lawsuit, they now expect it will be dismissed in the coming weeks or months.

 

The Texas law bans abortion after roughly six weeks of pregnancy and makes no exceptions in cases of rape or incest. Abortions in Texas have plummeted by more than 50% since the law took effect.

Smollett Sentenced

I admit it… I thought he’d get away with it.

(CNN)Former “Empire” actor Jussie Smollett was sentenced Thursday to 30 months of felony probation, ordered to pay restitution of more than $120,000 and a $25,000 fine and spend 150 days in jail for making false reports to police that he was the victim of a hate crime in January 2019.

 

After the judge announced his sentence, Smollett lowered his face mask and said he was innocent. “Your honor, I respect you and I respect the jury, but I did not do this,” the actor told the judge, before turning to the court. “And I am not suicidal. And if anything happens to me when I go in there, I did not do it to myself. And you must all know that.”

 

Just before he was taken into custody, the actor yelled again that he was innocent and raised a fist in the air.

High court rules on redistricting

My column for the Washington County Daily News is online and in print. Here’s a sample:

Given that the process directly impacts every politician in the state, except those who are elected statewide, politicians get very worked up about it. Almost nobody else cares even though they should.

 

[…]

 

The ruling by the high court was written by Justice Brian Hagedorn. As the only man on the court, Hagedorn has taken it upon himself to be the court’s fulcrum with three conservative women justices on one side and three leftist women justices on the other. What is impossible to discern is any guiding judicial philosophy by Hagedorn. It is not fair to call him a juridical conservative or a judicial liberal because his decision making is not consistent enough to divine a coherent philosophy.

 

In reading the decision written by Hagedorn, which I encourage everyone to do, it reminded me of something written by a high school sophomore. His childlike arguments were not rooted in law or precedent, but in his own personal sense of fairness. He whimsically brushes away law when admitting that his invented, “parties struggled with reconciling it (the court’s invented “least change” rubric) with the United States Constitution, Wisconsin Constitution, and Voting Rights Act.” They struggled to reconcile it because it is unreconcilable, yet Hagedorn persisted.

There are two major things wrong with Evers’ maps — one legal and one political. The legal problem is that, as Hagedorn’s ruling explains in great detail, Governor Evers determined district lines based on race. Using race to decide district lines is unconstitutional unless it is done to remedy a previous racial injustice, which no one has alleged. In this respect, Evers’ maps are a clear violation of the 14th Amendment.

 

When the 14th Amendment was written after the Civil War, it was designed to prevent racist white citizens from bottling up black citizens into a few districts to minimize their political power. Yet, this is precisely what Evers and Hagedorn did. Evers used racial considerations to create one more majority-black Assembly district by diluting black Wisconsinites’ voice in other districts.

“viewed with disfavor”

I had to chuckle at this part of the Wisconsin Supreme Court’s order:

IT IS FURTHER ORDERED that requests for additional briefing or extensions will be viewed with disfavor.

That doesn’t even make any sense. You can order that something happen, or not happen, but you can’t order that the court will view something with disfavor. They might view it with disfavor. They might not. You can say that it would be viewed with disfavor, but you can’t order it.

Silly, silly court.

Wisconsin Supreme Court Picks Evers’ Redistricting Maps

It’s safe to say that Wisconsin’s Supreme Court no longer has a conservative majority. It’s just the Hagedorn Court and his reasoning is so haphazard that the court’s ruling are just the luck of the draw. It all depends on how Hagedorn was feeling that day.

The state Supreme Court today delivered a win for Dems in picking Gov. Tony Evers’ congressional and legislative boundaries.

 

Even so, the new lines — if they withstand an appeal — would still leave Dems fighting an uphill battle to take the majority in the Assembly or Senate.

 

Writing for a 4-3 majority, Justice Brian Hagedorn wrote Evers’ maps most closely followed the court’s November directive to take a “least-change” approach to the existing lines Republicans drew a decade ago.

 

[…]

 

Ziegler, the court’s chief justice, slammed the majority ruling as “a complete lack of regard for the Wisconsin Constitution and the Equal Protection Clause,” adding it “amounts to nothing more than an imposition of judicial will.”

 

Roggensack wrote that by adopting Evers’ map, the court’s majority had engaged in racial gerrymandering and hoped the U.S. Supreme Court will be asked to “review Wisconsin’s unwarranted racial gerrymander, which clearly does not survive strict scrutiny.”

Court Disallows Drop Boxes for April Election

Good.

 

That means that after Tuesday’s primary, drop boxes located outside of local election clerks’ offices will be illegal and no one other than the voter will be allowed to return an absentee ballot.

Remember that this is not about whether drop boxes are good or not. They may be in certain cases. This is about whether election officials can make up the rules for themselves instead of following the laws passed by the legislature. If the liberals want drop boxes, I suggest that they propose a bill so we can have a proper public debate.

Breyer Retires

Not unexpected that the Democrats want to get this pushed through before they likely lose control of the Senate. I’d hope that the Republicans make the normal objections to any rabidly liberal appointees and vote accordingly, but not attempt to take any extraordinary actions to stop it.

Justice Stephen Breyer will step down from the Supreme Court at the end of the current term, according to multiple reports on Wednesday.

 

The current court term will end in June or early July.

 

Breyer is one of the three remaining liberal justices and has been under pressure to step down in order to let President Joe Biden appoint his replacement.

 

[…]

 

Biden is expected to act quickly to nominate a successor who can be ready to serve when the court’s new term begins Oct. 3.

 

Senate Democratic Leader Chuck Schumer said Biden’s pick would be confirmed with ‘all deliberate speed.

Wisconsin Supreme Court to Weigh Nondelegation Doctrine

There is a line here between rules to implement policies enacted by an elected body and rules that create new policy. I do not think that unelected bureaucrats should be creating new policy.

In a case stemming from several children not being able to play indoor sports because of Dane County’s emergency health orders, the Wisconsin Supreme Court is weighing whether to modify an elected body’s ability to hand over authority to an executive agency.

A conservative law firm representing Dane County plaintiffs and defendant Dane County have until Feb. 1 to tell the Supreme Court whether they want it to reconsider and modify current precedents on the “nondelegation doctrine,” or the idea that elected legislative bodies cannot pass the buck on decision-making to non-elected agencies and bureaucrats in most cases.

The doctrine became a focus of conservative groups around the country after the pandemic began, as a means to center power in Republican legislatures. Republicans in Wisconsin, spurred by business interests leery of government regulations, have for years tried to rein in the state’s executive branch agencies by revising the state’s rule-making process.

 

[…]

 

If the Supreme Court agrees with the plaintiffs, city and county elected officials would have to vote on public health policy changes rather than delegate that power to health officials. On a statewide level, more power would rest with the Republican Legislature if the Supreme Court decides executive agencies have too much rulemaking authority.

“It is our position that the legislature ought not delegate major or significant policy questions to the executive branch or administrative agencies,” WILL president and general counsel Rick Esenberg said in a statement. “This violates the separation of powers which mandates that the legislature makes the law and the executive administers it.”

People are policy

Here is my full column that ran earlier in the week in the Washington County Daily News.

After another election cycle where the Wisconsin Election Commission did everything they could within and without of the law to tilt the election results to the Democrats, there is talk again of restructuring or rebuilding the WEC to make it less partisan. The problem is not with the structure or mission of the WEC. The problem is with the people who run it and the refusal of lawmakers to hold them accountable.

 

The history of the WEC is important to remember. The WEC came into existence in 2016 as a response to the corrupt Government Accountability Board. The GAB was an allegedly bipartisan board that was responsible for the oversight of elections and ethics. Particularly after Gov. Scott Walker won in 2010 and Republicans won majorities in the Legislature, the GAB was involved in multiple scandals as they used their power over elections and ethics to advance the cause of Democrats. It was one of the many cases of Democrats weaponizing a purportedly unbiased government agency for political gain.

 

But the GAB was created for the same reason as the WEC. The GAB was only in existence for less than a decade. It was formed in 2008 to assume the combined responsibilities of the State Ethics Board and the State Elections Board. The GAB was created because the State Ethics Board and State Elections Board had been involved in multiple scandals where they used their authority to influence outcomes instead of acting fairly and, ironically, ethically.

 

Do you see the pattern? While the response of politicians to the rogue actions of one of their creations is to reshape it with the vain notion that structure can be a substitute for leadership, they ignore the root of the problem. The problem is not the structure. The problem is the people.

 

The structure of the WEC is designed to balance competing interests. The commission is comprised of six appointed commissioners who serve staggered five-year terms. Two of the commissioners are appointed by the governor. Two commissioners are appointed by the Senate majority and minority Leaders. Two commissioners are appointed by the Assembly speaker and Assembly minority leader. As structured, no single political party would ever have complete control of the commission, but one party could control a majority of the commissioners.

 

The commissioners are responsible for leading the WEC, but they hire a staff that does most of the work. The staff is also responsible for making recommendations to the commissioners on public policy matters. The WEC is not a lawmaking body. The extent of their mandate is to manage Wisconsin’s elections within the firm boundaries set forth in state statute. It is in the intentional violation of their legal boundaries where the WEC most often runs afoul of their charge.

 

In just the last few years, the WEC has bent or broken the law in a number of ways. They refused to purge the voter rolls in a timely fashion as directed by law. They reportedly allowed nursing home staffers to cast votes on behalf of residents in violation of the law. They allowed municipalities to use unattended ballot drop boxes, closed polling locations, prohibited special voting deputies from entering nursing homes, and repeatedly used the pandemic as an excuse to ignore state law. All of these actions made it easier to cheat and made our elections less likely to actually represent the will of the people.

 

Beyond the affirmative violations of the law, the WEC exploited its regulatory authority to favor Democrats. In almost every single dispute about an election process or action, the WEC ruled in favor of Democrats. It is remarkable that a purportedly nonpartisan and unbiased commission would make decisions in favor of one party so consistently.

 

The structure of the WEC is supposed to prevent such biased actions. The fact that the WEC is an appointed commission that is accountable to elected officials is supposed to hold them accountable to the law and mission of the commission. Here is where the actions, and inactions, of people is the root of the problem.

 

When the WEC was created, it was staffed almost entirely with the same Madison bureaucrats who worked in the GAB. Since the GAB was discredited and dissolved because it was corrupt, it was ludicrous to move the same staff to the new commission, but that is exactly what happened.

 

With the same biased and corrupt staff, the new commissioners of the WEC have the power and responsibility to act legally and fairly. Here again, the commissioners have failed in their duty to use their power to keep Wisconsin’s elections free and fair.

 

Even as the commissioners are failing in their duty, it is the duty and responsibility of the governor and legislative leaders to hold their appointees accountable when they violate the letter or spirit of the law. Here again, the elected leaders are failing in their duty.

 

The WEC has three layers of leadership and accountability, and all three layers are failing because of the weak and/or corrupt people who are in those leadership positions. There is no alternative commission structure than could instill ethics or backbone in people who do not have them already.

 

The problem with the WEC is not the structure. The problem with the WEC is the people responsible for running it. Until the people of Wisconsin hold elected officials accountable, the problem of corrupt and sloppy elections in Wisconsin is not going away.

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