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.