John Nichols, who writes for The Nation and the Madison Capital Times, was on MSNBC last night telling Ed Schultz there needs to be a federal investigation into the Wisconsin Supreme Court election.
The only reason he gave is that it looks bad and I agree, it does look bad from a variety of angles. But simply looking bad doesn't raise any federal questions — that is, those that fall within the exclusive ambit of the federal government* — or even implicate any of the provisions of the 14th Amendment, which is one route through which the feds might exercise authority over the preserve of an individual State.
Furthermore one of those relevant provisions, the Equal Protection Clause, is generally a last resort, and almost never a first resort.
And besides, as a practical matter, there's no reason to believe federal authorities are any more competent to review whatever irregularities may have occurred. US Attorney General Eric Holder should perhaps apprise himself of the situation through his agents on the ground here at the US Attorney's Office, but it's probably much better if he and his colleagues don't even comment at this juncture.
Except maybe to reinforce the point that this is Wisconsin's business.
There's already enough nonsense flying around as it is (including, arguably, these appeals for an immediate federal intervention**).
On the other hand it's always struck me as a failing of the US Constitution that it leaves the administration of elections to individual States, which in turn leave them to individual counties, to individual precincts, and ultimately to individual persons like Kathy Nickolaus, a renegade partisan elections official with her own cumbersome, jerry-rigged, and outdated computer applications.
That's nuts, in a word.
While the election at issue here was only a Statewide affair, Nickolaus has apparently used her same idiosyncratic procedures during fall elections, which involve federal offices. There needs to be federal standards that would restrict the actions of Kathy Nickolaus and others like her. That much is pretty obvious to this observer.
And while the federalist electoral regime was all good when scraps of parchment and quill pens were the only means of voting, those obsolete presumptions of the olden days just don't cut it anymore.
* Or at the least within a shared federal/State ambit.
** According to one headline I scanned over last night, Justice Prosser called them "preposterous." Your humble scribe is inclined to concur.
Legal Disclaimer: Not affiliated with the Federalist Society.