Apr 17, 2015

Another Reason Voters and Shirley Abrahamson Will Win

"[A]ll of this is unfair and unacceptable. It is not fair to change the election laws ... after the election has been held. ... It is simply not fair, ladies and gentlemen, to change the rules, either in the middle of the game, or after the game has been played."

So said James Baker on November 21, 2000 (Kudlow, National Review), referring to the alleged dilution and destruction of votes in violation of the Fourteenth Amendment's Equal Protection Clause.

Baker was arguing the Florida Supreme Court had engaged in an unconstitutional "judicial fiat" in ordering a recount of the Florida 2000 election, ultimately prevailing at the U.S. Supreme Court in Bush v. Gore: [..."Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another."]

Who knew the Republicans had an affinity for an expansive interpretation of Equal Protection Clause? (Supreme Injustice, Dershowitz; (Oxford 2001)) (Bronner, NYT).

Wisconsin Supreme Court Chief Justice Shirley Abrahamson and Wisconsin voters are arguing (Wisconsin State Journal document) the ambiguous formulation of the April 7, 2015, Referendum on Election of Chief Justice left open the question of whether the referendum is to begin prospectively or retrospectively and similarly making an appeal to the Equal Protection Clause in defending voters whose votes would be diluted by the new language in the Wisconsin Constitution.

A co-plaintiff (among others), Joseph P. Heim, a university professor and resident of LaCrosse, argues in their action the "challenged amendment if construed as applicable to Chief Justice Abrahamson and given retroactive effect dilutes the value of his vote and upsets his settled expectations by limiting the term of the candidate he successfully supported in the 2009 election" (p. 5).

U.S. District Judge James D. Peterson (appointed by Pres. Obama in 2013, confirmed in 2014, Ballotpedia) set a hearing (status conference) on the case for April 21, next Tuesday (2:00 PM, Courtroom 250) at the Robert W. Kastenmeier United States Courthouse. The hearing is open to the public.

Judge Peterson shortly after the April 7 election noted the vote to approve the amendment won't be certified by state election officials until April 29 (per the Wisconsin Government Accountability Board), after which judicial proceedings will adjudicate claims of irreparable injury to Abrahamson and voters (Bauer, AP).

Reads the complaint: "34. The new amendment to article VII, section 4(2) contains no language indicating that it is to have any retroactive effect; thereby, under standard rules of construction, it should be given only prospective effect and thus be subject to implementation only when the position of chief justice becomes vacant."

The merits of the Abrahamson and voters' action was brought to wide public notice by Dominique Paul Noth in his April 9 analysis and follow-up yesterday, noting most of the mainstream media's uninformed and slanted coverage does not bother with interviews of subject matter experts and constitutional law jurists.

Noth finds it incredible and improbable this legal action by Abrahamson and voters by distinguished constitutional law jurists would omit a legal strategy that either brings a favorable result to voters or costs Republicans politically and ultimately makes them look more toxic than even Scott Walker has become in Wisconsin.

Surely, the legal precedents and reasoning to be presented to the Court, unknown to the general public, will offer an answer to the 'why' this amendment should become operative prospectively, and one expects explain the relevancy of "standard rules of construction," regarding amendments to state constitutions that are applied in an unconstitutional manner under the U.S. Constitution, its unpopularity to the Republican and Tea parties, the Koch brothers, and Wisconsin Manufacturers and Commerce notwithstanding.

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