September 30, 2011

Marquette professor of law "closes the loop"

Well, not quite. Closing the loop might take a court of law.

I said I thought the Milwaukee County district attorney must charge Wisconsin Right to Life with a violation of the State election bribery statute, but law professor Rick Esenberg says the district attorney can't.

Let's take a look at the statute one more time:
Any person who offers, gives, lends or promises to give or lend, or endeavors to procure, anything of value, or any office or employment or any privilege or immunity to, or for, any elector, or to or for any other person, in order to induce any elector to [vote] violates this chapter.
As I suggested, this statute, Wis. Stat. § 12.11(1m), contemplates three parties: "Any person" (WRTL), "any other person" (WRTL volunteer), and "any elector" (absentee ballot filler-outer — "elector" is an elsewhere-defined term of art in Wisconsin law: it means "registered voter," and you must be a registered voter to complete the absentee ballot form).

And the "any other person" needn't be an elector.

Prof. Esenberg says my interpretation yields an absurd result, and he's correct that judicial doctrine counsels against interpreting statutes such that they yield absurd results. But it's Prof. Rick's interpretation that is prima facie absurd, according to the plain language of the statute.

In a nutshell, this particular law does not say what he wants it to say.

This is what he wants it to say:
Any person who offers anything of value [to any elector] in order to induce any elector to [vote] violates this chapter.
Except that isn't what it says at all.

The statute is larded with disjunctions and indeed lends itself to nearly a dozen separate prohibitions* depending upon which elements — e.g., "office or employment or privilege or immunity" — one might isolate.

This is only one of several equally valid** readings:
Any person who offers anything of value to any elector in order to induce any elector to [vote] violates this chapter.
This, Prof. Esenberg insists, is the substantive extent of the statute's reach, that it's limited to prohibiting that activity. And I suppose one might interpret that reading with the understanding that both "any electors" are one and the same individual. I would beg to differ.

However the statute also says this:
Any person who offers anything of value to any other person in order to induce any elector to [vote] violates this chapter.
That's what it says. I can't help it. It invokes three distinct parties.

As a matter of fact there is no way to read the statute as prohibiting only any person offering things of value directly to the elector herself, except by completely ignoring the statute's "any other person" language.

And according to press reports, WRTL offered things of value to other persons in order to induce electors to vote. Nevertheless, Prof. Esenberg insists that in order to violate the statute, WRTL would have to have offered the thing of value directly to the elector, or at least that the recipient or potential recipient of the inducement must be "any elector."

I might agree that that may have been the drafters' intention. And I understand perfectly what Rick is saying. He's saying that the statute is directed at the any person either offering the thing of value directly to the elector or the any person giving the thing of value to the any other person in order for the other person to offer it directly to the elector.

But that doesn't make much sense either. Indeed it makes worse sense, because under that reading, only the any person who offered the thing of value to the any other person in order to offer it to the elector violates the statute. By that reading the any other person who actually offered the thing of value directly to the elector would be wholly exempt from prosecution. Now that is absurd, and betrays the statute entirely.

If one accepts that interpretation, then both the any person and the any other person should be implicated in the bribery, no? Yet the statute expressly does not contemplate penalizing the any other person — the middleperson, if you will — who directly offered the bribe to the elector.

Sez Rick of the outcome of my judicially conservative plain reading:
The results are absurd and would, I think, render the statute unconstitutional.
All the more reason the DA "must" charge WRTL. Not because I have anything against the "good people" at WRTL, but because I want to see the case in court. Rick is correct that the courts are self-directed to read the statutes in such a way as to preserve their constitutionality.

I just want to see how they're going to get out of this one. Because it seems to me the only way a court could get out of this one is to rewrite the statute. And that's a big No-No for conservatives, or so they tell us.

What the professor has already done is rewrite the statute.*** And I would be just as happy to see a court affirm his interpretation. As a matter of fact seeing a court — especially the Supreme Court — affirm his would be even more entertaining than seeing a court affirm mine.

(This, by the way, is a telling admission on Prof. Esenberg's part, which he cleverly saves for the penultimate statement of his otherwise patently unequivocal discourse: "What the statute seems to be aimed at is bribing electors." Emphasis mine. Catch that? See, he secretly agrees with me.)

* Possibly more; I haven't counted them all up, for want of a calculator.

** Prof. Esenberg instructs us all that each reading is not equally valid. And that's where he goes "extra textual," into doctrines of statutory construction. He describes those doctrines well but their application is invoked only where textual ambiguity inheres in the statute. "Any person who offers anything of value to any other person in order to induce any elector to [vote] violates this chapter" is neither ambiguous nor vague.

IMHO, as the kids say.

*** Which at least is not as bad as rewriting the Wisconsin constitution.

Nota bene to Sh. 'n' Sh. commenter Geo. Mitchell — Any system of logic that employs false or irrelevant premises is useless, as sound as the conclusory derivations from those false or irrelevant premises may be.

13 comments:

gnarlytrombone said...

Tom's interpretation is, shall we say, rather expansive

Ah, so now the parenthetical door knocks and phone calls are attributed to you.

Ed Fallone said...

Below is a link to an interesting article that surveys various state laws on the topic of "election bribery." The focus of the article is to consider whether various internet "vote swapping" schemes violate state election laws. However, the discussion illustrates how varied the state statutes are and how some of these statutes criminalize activity that is directed at third parties who might encourage or induce electors:

http://www.ncjolt.org/sites/default/files/worleypd.pdf

Given the variety of approaches taken by the states, I don't find Tom's interpretation of the plain meaning of the Wisconsin statute to be "absurd" in the least.

illusory tenant said...

Thanks. Wonder if Jim Bopp read that article.

gnarlytrombone said...

Huh. Strange that Minnesota didn't try to shut down all canvassing because of Nader's vote swap site.

John Foust said...

Direct link for the copy-paste impaired.

And more on Speed Queen BBQ.

Rick Esenberg said...

I don't think you're following my argument. I am not saying that the thing of value must be given or offered to the elector. What I am saying, to borrow a principle from contract law, is that the offer or gift must be consideration for the elector's decision to vote or refrain from voting. I offered the example of someone offering money to my son to induce me to stay home on election day.

That seems consistent with both the wording of the statute in which the elector must be the object of an inducement and avoids results that you must concede are absurd. On your reading of the statute, it would be illegal to pay someone to produce a ad encouraging people to vote.

Ed provides a link to an interesting article but he doesn't explain what in the laws of another state would support such an expansive view of electoral bribery and I certainly couldn't find anything in it that offers such support.

WRTL should not be charged unless there are some facts to support an inference that the gift cards were offered or given (whether to the elector or a third person) as consideration for an elector's decision to vote or not to vote.

I really don't think your interpretation gets even one vote on the state Supreme Court.

illusory tenant said...

On your reading of the statute, it would be illegal to pay someone to produce an ad encouraging people to vote.

Pretty bad law huh?

WRTL should not be charged unless there are some facts to support an inference that the gift cards were offered to a third person as consideration for an elector's decision to vote or not to vote.

[Edited for disjunctions.]

But isn't that exactly what happened?

gnarlytrombone said...

an elector's decision to vote or not to vote

A completed ballot application being a damn sight closer to evidence of intent than an affirmative answer to "Can I count on your support?"

Ninja said...

Seriously? You're still at this? Even a cursory look at the case law shows that the elector's voting behavior has to hinge on the bribe to the third party. The DA would have to prove that a person voted only so that a volunteer could earn 1/100th (or whatever the quota) of a gift card. That's silly and impossible.

The law is intended to get at that old "Vote for me and I'll give your daughter a job" tactic. In that case the benefit, even though it's not a tangible benefit, goes to the voter, whose daughter, who he or she presumably cares about a great deal, now has a new job. That's a bribe, even though it's not a bribe that goes directly to the voter.

That's very, very different than compensating someone for registering voters, or driving people to the polls, or dropping campaign literature off on doorsteps. The voter who gets a "Vote for Joe" flyer under his windshield isn't going to vote for Joe just because some kid got paid 8 bucks an hour to drop off the flyer. That would be absurd. And voters in Milwaukee didn't vote in the recall elections just because some random volunteer received a gift card for signing people up for absentee ballots. Equally absurd.

You would be violating the law under your reading. You give money to a third party (your internet host) to facilitate your messages that are intended to influence voting behavior. How is that different than giving a kid a gift card for signing up voters? If anything, your conduct is even more objectionable under your reading of the law because you're actually encouraging particular policy positions rather than just encouraging people to vote.

You should really turn yourself in or drop this bizarre mess of an argument.

illusory tenant said...

Which case law are you advising me to have a cursory look at?

Ninja said...

I could be wrong about case law addressing the necessity of proving actual inducement. I can't find the case that popped up after a quick search last week when I read your first post on this subject and I'm not going to spend any more time on it.

But even assuming that there's no case law explicitly explaining such a requirement, there has to be some relationship between the person receiving a benefit and the person voting, otherwise this blog is illegal. TV ads are illegal. Bumper stickers (unless they're homemade and only displayed by the person who created them) are illegal. Rock the Vote is illegal. The entire political industry is illegal. And that seems pretty absurd, and not at all helpful to the cause of prohibiting actual bribery.

Anonymous said...

Ninja--Why should any organization offer gift cards to get people to convince others to vote? To me, that is absurd.

illusory tenant said...

There has to be some relationship between the person receiving a benefit and the person voting ...

Where do you find that in the statute?