Judge Rules Against Wis Dems Intervention In GOP Recall Lawsuit

December 29, 2011 11:18 a.m.

A judge in Wisconsin has ruled that Democratic recall organizers cannot challenge a lawsuit brought by the state GOP against election officials — a suit that claims Gov. Scott Walker’s constitutional rights are being violated by the state’s petition review process.

This means that barring a hypothetical appeal, any continuing litigation in this matter will be conducted exclusively between the state GOP and the election board’s attorney, without the Dems themselves being able to participate and present legal arguments.

“I was a little surprised,” said Jeremy Levinson, the attorney for the recall committee, in an interview with TPM. “It’s the first time I can recall — let me rephrase — it’s the first time I’m aware of a recall-related lawsuit where only the official who is being targeted for recall gets to be a party, and the folks who are working to recall that official are shut out of the process.”The Milwaukee Journal Sentinel reports:

In denying Levinson’s motion to intervene, Davis cited reasons including the need for speed in the case, with the signatures coming in by Jan. 17; the possibility for “chaos” or a “free-for-all” if the new parties were allowed into the case; and that the recall groups’ position will be adequately represented by the accountability board and its lawyers. Lewis Beilin of the state Department of Justice is representing the board.

“This is the kind of case in which timeliness is especially weighty and critical,” Davis said.

After the hearing, Joe Olson, an attorney for Thompson and the Walker campaign organization, called the decision “reasoned and articulate.”

As for the overall case, he said, “We want some clarification from the court for what the GAB is supposed to do when it gets signatures that are invalid on the face of the petition.”

The state GOP’s lawsuit filed two weeks ago against the state Government Accountability Board, which oversees elections in the state, claims that Walker’s 14th Amendment rights of Equal Protection are violated by putting a burden on his campaign to review and challenge petition signatures within a ten-day period. Instead, they say, the GAB must thoroughly search for and directly strike out duplicate signatures, and invalid names and addresses.

The board’s director has in fact said that the board will flag suspicious petitions that it receives, but under the law they do not directly strike signatures based only on the face of the petition. The petitions will be filed in mid-January, which will then kick off the review process. The same procedures were used in a series of state Senate recalls, on both sides of the aisle, earlier this year.

The motion to intervene by recall organizers, filed last week, argued that they have interests as the people working to bring about a recall as soon as possible, and thus have a stake in the outcome of a challenge to the rules under which they have been working. In addition, they laid out in detail their opposing argument to the GOP’s legal case.

The lawsuit was filed by the state GOP in Waukesha County, the state’s major Republican stronghold, and ended up being assigned to Judge J. Mac Davis. As for his own background, Davis was a Republican state Senator over 20 years ago, and during the final years of the Bush administration, he was nominated for a federal circuit judgeship, but the nomination was never taken up by the Democratic-controlled Senate.

To be absolutely clear, though, a judge’s previous political background is not automatically a count against them, and it is far from uncommon for legislators to go on to become judges.

TPM asked state Democratic Party spokesman Graeme Zielinski whether he questioned Davis’s motives or neutrality. “Not at all, but the facts of his partisan background are the facts,” said Zielinski.

Levinson was also asked whether he questioned Davis’s motives, and had this response: “In light of the rules of professional conduct that I am obligated to operate under, I am extremely hesitant to speculate as to a judge’s motivation in a case like this.”

Meanwhile, both the Dems and Levinson also said that they had confidence in Lewis Beilin, the state Justice Department attorney who is representing the GAB, with Levinson noting that Beilin had previously represented the board in litigation relating to the state Senate recalls earlier this year. “It’s an easier question for me, mind you, because he’s already filed his motion to dismiss, his brief, and it’s pretty good.”

TPM asked Levinson whether any decision had been made on appealing Davis’s ruling, to which Levinson explained that such a thing was unlikely due to the logistics of the case itself.

“Well, my understanding is that Judge Davis is going to hear the GAB’s motion to dismiss, and hear Walker’s motion for an injunction on the same day, on the 5th. And as a practical matter — two things, as a practical matter, it’s just virtually impossible to get any effective appellate review of the intervention question. And I think before it makes sense to scramble and pour resources into this thing, is to see whether it would make any sort of difference. And we’re gonna know that very quickly.”

When asked for comment, the state GOP sent TPM this comment from communications director Ben Sparks: “The Republican Party of Wisconsin is committed to ensuring that Wisconsin electors are not disenfranchised during this recall process. The Democrats have shown they are committed to preserving the status quo, where a man is able to sign a recall petition 80 times, and their frivolous attempt to intervene in this lawsuit only reinforces their willingness to force this baseless recall on Wisconsin voters at any cost.”

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