April 12, 2011

John Nichols on looking bad on "The Ed Show"

An occasional society of Federalists newsletter

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persons like Kathy Nickolaus, a renegade partisan elections official with her own cumbersome, jerry-rigged, and outdated computer applications.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.


Dale said...

You wrote:
"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."

Once upon a time, the States had sovereignty over the federal government. This was lost after Lincoln won the Civil War and prevented states from seceding. (You can check in but you cannot check out of the United States of America.)
Having the federal government control local elections is another step forward towards the Federal States of America and another loss for state sovereignty. Every loss to state sovereignty is another move towards oppressive federal government.

illusory tenant said...

I'm not suggesting control, only uniform standards.

mal said...

If a public official were to intentionally delay, alter, and revise the counting and tallying of votes for corrupt partisan purposes, even for a limited time, and perpetuate a fraud; it is not difficult to contemplate federal charges of misapplication of funds and fraud.

Among the reasons for federal investigations of public corruption is indeed the restoration of confidence in the integrity of the democratic system of this republican form of government. And yes, this includes the confidence of the public in the integrity of elections, especially in the face of irregularities and a pattern of apparent deceit; i.e. looking good vis a vis bad.

Blake said...

"Once upon a time, the States had sovereignty over the federal government."

I have no idea what this is supposed to mean. The states that formed a new federal government in 1788 ceded limited sovereignty to that government. To that extent, the federal government was sovereign over them (interstate commerce, yadda yadda).

I think I agree with your overall point, which I take to be that the balance of state vs. federal power tipped overwhelming to the feds a long time ago, continues to tip in the federal direction, and is an unhealthy thing.

However, that wouldn't have to happen with election reform (which I, like Mr. tenant, think is desperately needed). A constitutional amendment providing for federal standards governing federal elections needn't exercise any legal control over the states and how they want to conduct their own local elections. It would probably lead to states voluntarily adopting federal standards for local elections, especially if they continued to hold federal and local elections on same days, but regardless, that's all pie-in-the-sky hypothetical at this point anyway.

gnarlytrombone said...

Agreed on Nichols. Ugh.

I'd add that elections are criminally underfunded, which is perplexing in a state where there's wild-eyed concern about masses of people gaming the registration system.

Mike said...

Waukesha County and Kathy Nickolaus in particular need to be held accountable right now. That is how to prevent messes like this in the future, is it not? It seems the county itself has given it a shot to no avail. So who's going to send a message to this rogue actor that she will hear. Kevin Kennedy? Please.

Anonymous said...

Perhaps vote counting is not unlike financial accounting. Your church or organization may elect a great treasurer but you will still probably hire an independent accountant to audit the books from time to time. If you can't afford a treasurer who runs off with the trust fund, you can't afford not to have an independent audit system.

Voters can't afford election fraud or mismanagement either.

illusory tenant said...

mal: Big "Ifs" at this point, no?

Display Name said...

There are issues of scale and local control, especially as costs are passed down to the smallest level. The Town of Lake Mills, as recently spotlighted in our news, has 1353 registered voters and about half of them showed up for this election.

I like Bruce Schneier for issues of security and voting.

Dale said...

IT- Uniform federal standards with no controls? That is not likely to last long.
Blake- yes,agree, I stated it inartfully. As we know, the independent colonies chose the form of government in the beginning but they would not choose what we have today.

I oppose anything that asserts more federal control over state elections. I know it does not look like it, but we are individual states united together. Let us keep it that way.

illusory tenant said...

Dale, uniform standards needn't imply federal controls. I submit voluntary compliance with uniform standards could almost be assumed. Look to Wisconsin's other 71 counties, where the difference between unofficial and official results was for the most part negligible, which suggests a very high degree of competence among the State's election officials and volunteers. We're not trying to control everyone else, we're trying to prevent Kathy Nickolaus.

gnarlytrombone said...

I calculated error rates for the worst offenders just for kicks. Following Waukesha at 12.4% is Winnebago, 2.9%; and Iowa, 2.8%. Drops to 1.5% for Eau Claire and .6% for Kenosha. Would be interesting to know what the most common sources of miscounts are.

MAL said...


RE "bif ifs." Agreed

I believe we have crossed the threshold for an investigation, the results of which would be, as you suggest, unknown.

Display Name said...

Volunteers? I thought poll workers were paid, in dollars if not in doughnuts and pizza.

What y'all make of the Daily Kos story with the weird tallies in the 2006 election? More Excel/Access errors, I assume.

Jim Bouman said...

Nickolaus is just a small cog in the Republican machine in Waukesha County. The County Executive, the DA, The Sheriff, the County Clerk, Clerk of Courts, Register of Deeds, and the County Treasurer control hundreds and hundreds of patronage jobs in the Courthouse.
They're Republicans, they're dull normal, devoid of imagination, cautious, clubby, (country clubby, to be sure) moss-backed, "You scratch my mossback, I'll scratch yours"; they're bad tippers; they're devoid of imagination; they have backyard shrines to the Gipper.
The boldest thing any of 'em do is to abandon their mainline congregations when they start having to listen to liberal female ministers preach about social justice, forcing them to find solace and affirmation at mega-churches that reinforce their small-mindedness.
They are not so schemingly evil that they would actually cook up a plan to steal an election.
They're dullards. Their greatest collective achievement is that they cover for each other. This time they slipped up. They'll ease Nickolaus out of the picture and replace her with a someone who will be a virtual clone, lacking only Kathy's "flub".

gnarlytrombone said...

That was flippin' beautiful, Jim. Bad tippers says it all.

Unknown said...

John: Regarding the Daily Kos post, I took a look at Washington and Ozaukee counties as well (heavily conservative like Waukesha) for comparison, and Waukesha's numbers didn't seem flagrantly off. Dunno if you're on Facebook, but I made a post there with some analysis (I don't have a fancy blog, sadly): http://www.facebook.com/note.php?note_id=10150230985494009