Why the DA must charge Wisconsin Right to Life

In August, the Journal-Sentinel reported that Wisconsin Right to Life (WRTL), the personal privacy skeptics, "offered gift cards ranging from $25 to $75 to volunteers who hit [quotas] for persuading voters to fill out absentee ballot applications in the July recall primary elections."

Last Sunday, the Journal-Sentinel's Daniel Bice confirmed that an investigation into the practice was sustained, and that the Milwaukee County District Attorney's office was handing out subpoenas "like candy." Election bribery is a felony, which means it carries a prison sentence.

This is Wis. Stat. § 12.11(1m), emphases supplied:

Any person who does any of the following violates this chapter:
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:

1. Go to or refrain from going to the polls.

2. Vote or refrain from voting.

3. Vote or refrain from voting for or against a particular person.

"Any of the following" means that giving and offering and promising to give are equally as prohibited by the statute. An offer or promise to give are each sufficient to constitute a violation, short of actually giving or lending. "Anything of value" means — other than cash — "any object which has utility independent of any political message it contains and the value of which exceeds $1." The vouchers satisfy both these criteria.

As I read it, the statute contemplates connections among three separate individuals: (A) the "any person" whose proven offer or promise to give exposes them to a Class I felony, (B) the "any other person" before whose snout the offered or promised inducement tool is dangled, and (C) the "any elector" whose "going to the polls" (or not going to the polls) or "voting" (or not voting) is ultimately sought.* In this case, (A) would be Wisconsin Right to Life, (B) would be the Wisconsin Right to Life volunteers, and (C) would be the absentee ballot application signatories.

WRTL and its counsel James "Constitutional Right to Lie" (CRTL) Bopp would likely claim that submitting absentee ballot applications is neither "going to the polls" nor "voting." And that may be. But their legal problem will be with the inducement element of the statute. Because if one is inducing electors to submit absentee ballot applications, even by an "any other person" proxy, one may not be inducing electors to "go to the polls" — because absentee ballots are by definition proxies for going to the polls — but one is arguably inducing registered electors to vote.

One might attack the claim that merely submitting the absentee ballot application marks the end of the inducement. Of course the inducers — who are both the "any person" and the "any other person" in the election bribery statute — desire a completion of the inducement process: voting. And inducement may most certainly be a process. Its meaning in law is not limited to the performance or completion of discrete acts.

Absentee voting is voting. Requesting absentee ballots is not voting. So the question reduces to whether the statute allows for a thing of value to be offered to anyone to induce any behavior by a registered voter up to the point of that voter actually casting a ballot. Here it seems there is an inducement to vote. Otherwise what good is a completed absentee ballot application? The statute is not so clear, as applied to these facts.

Under different circumstances the Milwaukee County District Attorney might solicit an advisory opinion from the Attorney General as to what activities fit within the outer boundaries of the statute. But we already know what this particular Attorney General's opinion would be. Most of us could give it to him without even asking for it. Which is why the DA needs to formally charge WRTL. Even if the DA's theory is mistaken, a clarification is required for the future, and only a court can provide it.

* You must be an "elector" to complete the absentee ballot application.