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.

Wisconsin Republicans Really Hate U.S. Constitution, Abrahamson Looks Likely to Prevail

A 2009 TV spot offers plaudits for
Chief Justice Shirley Abrahamson

Wisconsin Supreme Court Chief Justice Shirley Abrahamson's suit in federal court alleges violations of the U.S. Constitution's Due Process and Equal Protection clauses, and she and voters are likely to prevail.

"[Coplaintiffs] Joseph P. Heim, David Perkins, John V. Lien, Marilyn Wittry, and Hilde Adler are registered voters in the state of Wisconsin who supported the successful 2009 reelection campaign of Chief Justice Abrahamson and voted for her with the expectation that her successful reelection, in which she campaigned as 'Wisconsin’s Chief,' would keep her in the position of Chief Justice until her term expires in 2019, absent her resignation, death, disability, or recall," reads the complaint, Abrahamson et al v. Neitzel et. (Wisconsin State Journal)

Abrahamson defeated Randy R. Koschnick, garnering almost 60 percent of the vote. (Wisconsin GAB)

A victory in federal court would keep Abrahamson as Chief Justice until 2019, just as voters elected her in 2009.

Who knew that Wisconsin Supreme Court Chief Justice Shirley Abrahamson's Campaign was advocacy that Abrahamson be elected to Wisconsin Supreme Court Chief Justice? Any voter who caught a TV spot for one. "That's our Chief," concludes the ad below.

But not Wisconsin Republicans, if they are to be believed.

And do Wisconsin Republicans ever hate the U.S. Constitution's Due Process and Equal Protection clauses when they conflict with GOP state constitutional amendments and laws.

Dom's Domain has the story that Abrahamson and voters' complaint filed in federal court this week is likely to prevail in a must-read piece.

The following 2009 TV spot by the Greater Wisconsin Committee is typical of pro-Abrahamson ads run in 2009:

Scott Walker Still at Center of Criminal Probe, Effort to Demote Shirley Abrahamson

Even as Republicans try to bump Wisconsin Supreme Court Chief Justice Shirley Abrahamson off her position as chief justice for voting the wrong way by GOP lights, Abrahamson has filed a suit in federal court alleging violations of federal Due Process and Equal Protection rights, should the new demotion retroactively undo the results of a 2009 election. (Marley, Milwaukee Journal-Sentinel) (Smith, New York Times)

Abrahamson and plaintiffs "seek a declaration that the amendment approved to article VII, section 4(2) of the Wisconsin Constitution is prospective only, so that the method it prescribes for the selection of a chief justice may not be implemented until Chief Justice Abrahamson’s current term of office ends, in accordance with the governing law that existed when she was reelected to that post in 2009 for a ten-year term. Alternatively, should the amendments by its terms not be construed to apply prospectively in this fashion, Plaintiffs seek a declaration that the retroactive application of the amendments so as to apply immediately and thereby shorten the term of office to which Chief Justice Abrahamson was reelected would violate the Constitution of the United States ... ." (Wisconsin State Journal reproduction of complaint)

The Wisconsin Constitutional Amendment that would demote Abrahamson was passed on party-line votes by Republicans in two consecutive legislative sessions, and was heavily funded by the GOP-aligned Wisconsin Manufacturers and Commerce in the low turn-out Spring election on April 7.

In Wisconsin, legislative Republicans do not enact Constitutional Amendment proposals without the consent of Scott Walker.

Meanwhile Scott Walker stands accused of being in the center of a criminal scheme and Wisconsin Republicans on and off the Court are attempting to protect Walker as three consolidated John Doe cases are now before the Court.

The role of the Chief Justice includes procedural and administrative duties but should one of the four GOP justices assume the chief justice position, she would have the power to affect the scheduling and releasing of cases before the Court.

Pro-Corruption GOP

In recent years, the four GOP justices have voted against the three rule-of-law justices to enact Court rules favorable to the Republican Party and promote corruption.

In July 2010, the four GOP justices enacted a rule reading in part, "a judge shall not be required to recuse himself or herself in a proceeding based solely on any endorsement or the judge’s campaign committee’s receipt of a lawful campaign contribution, including a campaign contribution from an individual or entity involved in the proceeding." (p.2)

Republican special interest groups petitioned the Court to change the recusal rule.

"In 2010, the Wisconsin Supreme Court's four-justice conservative majority voted to adopt new rules stating that the fact of a campaign contribution alone would not require recusal -- but the rules were literally written by none other than (Wisconsin Manufacturers and Commerce) WMC, as well as the Wisconsin Realtors Association, which gave over $1 million to Wisconsin Club for Growth in its 2010-2011 fiscal year. In other words, WMC wrote the rules requiring that the justices WMC has elected not recuse in a case involving WMC's election activities." (PRWatch)

Each of the four Republican justices on the Court—Justice David Prosser, Justice Michael Gableman, Justice Annette Ziegler and Justice Patience Roggensack—were elected with money by the same groups now appearing before the Court.

"Wisconsin Club for Growth (WiCFG) and Wisconsin Manufacturers and Commerce (WMC) played a key role in electing the four justices in the majority, in most cases spending more than the candidates themselves."

A bipartisan group of prosecutors allege that the Walker campaign illegally coordinated fundraising and expenditures with WiCFG and WMC (and perhaps other groups) during the 2011 and 2012 recall elections. Representatives of the Walker campaign, WiCFG, and WMC could face criminal liability if prosecutors find that they conspired to evade campaign finance disclosure requirements and contribution limits." (PRWatch)

Whether the Wisconsin Supreme Court retains a shred of credibility will depend on how aggressively the four Republicans protect Scott Walker from the criminal probe:

"The justices are expected to be in the news again in the coming weeks as they consider whether an investigation can proceed into claims of improper coordination in 2011 and 2012 between conservative groups and the campaign of Gov. Scott Walker, a Republican and a probable presidential candidate. (Smith, New York Times)