Welcome to Post-Confidence Elections

Monday, Tom Englehardt wrote  a post: Welcome to Post-Legal America, subtitled: Dumb Question of the Twenty-first Century: Is It Legal? Post-Legal America and the National Security Complex <read>

Is the Libyan war legal? Was Bin Laden’s killing legal? Is it legal for the president of the United States to target an American citizen for assassination? Were those “enhanced interrogation techniques” legal? These are all questions raised in recent weeks. Each seems to call out for debate, for answers. Or does it?…

My answer is this: they are irrelevant. Think of them as twentieth-century questions that don’t begin to come to grips with twenty-first century American realities. In fact, think of them, and the very idea of a nation based on the rule of law, as a reflection of nostalgia for, or sentimentality about, a long-lost republic. At least in terms of what used to be called “foreign policy,” and more recently “national security,” the United States is now a post-legal society…

It’s easy enough to explain what I mean. If, in a country theoretically organized under the rule of law, wrongdoers are never brought to justice and nobody is held accountable for possibly serious crimes, then you don’t have to be a constitutional law professor to know that its citizens actually exist in a post-legal state. If so, “Is it legal?” is the wrong question to be asking, even if we have yet to discover the right one.

Then today, news that the “apparent” loser in the Wisconsin Supreme Court recount decided concede and not to pursue legal challenges. <Brad Blog overview and details> Sadly we agree with the candidate’s logic. From her statement:

Wis. Stat. §5.01(1) provides that the state election laws “shall be construed so as to give effect to the will of the electors, if that can be ascertained, notwithstanding informality or failure to comply with some of its provisions.” It is questionable whether even the statewide extent of noncompliance uncovered by this recount would cross the bar raised by this statutory language. Moreover, Wisconsin courts have held that absent connivance, fraud or undue influence, substantial compliance with the statutory voting procedures is sufficient.

Which brings me to Waukesha and the question of whether– or if — there was manipulation of some ballots, given the fact that so many bags were unsealed to the point of being wide open. Here again, evidence of opportunity to manipulate or alter ballots is not enough. There would have to be compelling proof that the integrity of the ballots has been compromised. The numerous glaring anomalies in Waukesha certainly warrant further, independent investigation. However, the defects or irregularities in the sealing and securing of the ballot bags, as documented in the recount minutes, would not be sufficient to meet the threshold set by law.

As an attorney, as an officer of the court and as someone who understands both the power and the limits of the law, it is my obligation to evaluate and recognize the legal grounds on which I can and cannot act. I have reviewed the record, the evidence and the law. It would serve no purpose to bring a suit with insufficient legal basis. That is not the kind of lawyer I am.

I suppose it depends on what “substantial” means in “substantial compliance”.

Reading the story of the recount and the election itself, leaves us with little reason to have confidence that elections run like this one in Wisconsin, with fallible accounting and the lack of ballot security result in the winner actually chosen by the people. We have no reason to believe this election is atypical for Wisconsin – just that initial numbers were close enough to require a recount, so critical to receive national attention. Like the candidate, JoAnn Kloppenburg, we cannot say that the result is incorrect, only that elections run this way provide no confidence in the system and could be incorrect by error or won by skulduggery.

Wisconsin is not alone. The chain of custody and security of ballots in Connecticut is no more reliable than  in Wisconsin. Until election administration and security is fixed in every jurisdiction in the Nation, we are now knowingly in the era of post-confidence elections. Kloppenburg has asked that the system be improved:

We did the right thing in asking for a recount in this very, very close election. The recount shed light on significant and widespread issues with elections in Wisconsin. The magnitude of those issues surprised clerks, election volunteers, and observers from both campaigns. The problems and gaps ought to be addressed as quickly as possible. And they ought to be fixed.

That is why my campaign is submitting a letter to the Government Accountability Board which summarizes the anomalies, irregularities and in some cases the unexplained mysteries uncovered in this recount. I call on the GAB to take action, along with local clerks, to improve the security, accountability and transparency of the election process in Wisconsin, and to ensure that every vote counts and is counted accurately. The GAB must improve compliance with basic election procedures.

We are also doing the right thing by declining to pursue legal action. Based on the record established in this recount and based on Wisconsin law, the will of the electors has been determined. It is time to learn from this recount, fix the problems it uncovered and ensure that future elections are different.

A good start would be appropriate penalties for officials at all levels responsible for breaking security and the law, followed by sufficient improved election procedures which are enforceable and actually enforced. Penalties should fit the consequences of the loss of public confidence in the system and the consequences of the potential for incorrect or fraudulent election results.

Laws and procedures which are not enforced for elections in the name of “trust us” and “it would be too much work”, are no more real than the laws and Constitutional provisions ignored in the name of national security.

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