December 7, 2011

Why Wisconsin Right to Life was not charged

Further to yesterday's blargh entry, "Bribes" are a wash.

To recap, here's the operative portion of WRtL's email:
The Wisconsin Right to Life and Family Action coalition is offering rewards for volunteers who make an impact over the weekend by educating and encouraging family and friends to vote by absentee ballot. Here are the rewards: $25 Gift Card for any volunteer who can get at least 15 pro-life/pro-family voters to complete an Absentee Ballot Application dated by Tuesday, July 5th.
This is the assistant district attorney's own condensation of the statute:
(1m) Any person who does any of the following violates this chapter:

(a) Offers [or] gives ... anything of value ... to ... any elector, or to ... any other person, in order to induce any elector to ...[v]ote or refrain from voting.
Offer or give. Give or offer. That is, whether the thing of value is given or offered, each action is equally violative of the statute. It is not more violative to give than to offer, nor is it worse to offer than to give.

Yesterday ADA Landgraf decided that it is worse to give than to offer.

Moreover, he decided that it is worse to request than to offer, even though the statute says absolutely nothing about any requesting. And in the course of deciding so, he characterized the statute as follows: "The 'thing of value' need only induce the elector to vote." Italics are his.

Except that is not at all what the statute says. The inducement — or "encouragement," if you will — obtains from the any other person who is offered the thing of value. Contra the ADA's reading, it is not the "thing of value" that provides the inducement to vote; rather, it's the "any other person" who was offered the thing of value who performs the inducement to vote. The latter action is WRtL's "encouragement."

Any person offers a thing of value to any other person, who in turn "induces" an elector to vote. There are three parties in the statute.

I continue to see no way to deny that and it should probably be fixed.

Notably, part of Mr. Landgraf's analysis involves postulating a set of hypotheticals that are very much unlike the circumstances before him. For example he imagines a rally featuring "a national recording artist who would otherwise perform only for persons paying far in excess of a $1 admission fee." That's entirely unlike WRtL's offer, to coin a phrase.

But on the other hand Landgraf concludes that, "fact patterns that are not entirely unlike those presented here may well violate the Election Bribery statute, even if Absentee Balloting is involved." So why not charge WRtL? Throughout Landgraf's analysis, he denotes both what he perceives as the lack of clear guidance in the language of the statute itself and the fact that "no judicial opinions offer guidance to help answer" the question, "What does it mean to induce an elector to vote?"

So should there be a judicial opinion, or will the ADA's opinion suffice?

I expect there will eventually be a judicial opinion, just not today.

I will note that Black's Law Dictionary, 7th ed., defines inducement as "enticing or persuading another person to take a certain course of action." The word WRtL uses is "encourage." The Pocket OAD, 2nd ed., defines induce as "persuade or influence someone to do something."

Encourage means "give support, confidence, or hope to someone," or "help an activity, belief, etc., to develop." That's not "inducement"?

Additionally, the Milwaukee County district attorney's investigation unearthed a trove of correspondence among WRtL, its partner Wisconsin Family Action, and those groups' "family and friends," detailing the two outfits' objectives. Not only were those outfits' efforts directed at inducing voting, and not only were they directed at inducing voting for sympathetic candidates, they were directed at inducing voting for a specific, named candidate: Republican Senator Alberta Darling.

The longer view takes into consideration the fact that ADA Landgraf had two separate cases on his hands: the one involving WRtL and another involving Wisconsin Jobs Now, which was organizing van rides for prospective voters to City Hall at the starting point to which there was available "refreshments" ("barbeque") if one wanted them. In the latter case Landgraf acknowledged — through testimony provided by, of all people, Media Trackers, which had previously accused Wisconsin Jobs Now of "multiple violations of election law" — there were none of the connections between the three parties contemplated by the statute.

The ADA also makes much of the fact that Wisconsin Jobs Now is aligned with Democratic interests, while Wisconsin Right to Life is aligned with Republican interests (specifically, its interests in incumbent Republican Senator Alberta Darling). Whereas the ADA finds not only no connection between WJN and any specific candidate, he finds no connection between WJN and any specific political party. And whereas WRtL admits its connection to and support of a specific candidate, despite a depiction of its activities as "issue ad[vertising]" which, in another area of election law, is by definition the antithesis of named-candidate advertising.

Landgraf also emphasizes the fact that each of the legal memoranda he solicited from both Wisconsin Right to Life and Wisconsin Jobs Now tended to exonerate from prosecution the activities of the other.

In short the sense conveyed by ADA Landgraf's letter to the circuit court judge is that this escapade, as a whole, is a wash. Offsetting penalties, by the gridiron analogy. Personally I still find the "barbeque" and the "gift cards" circumstances very much distinguishable as applied to the plain terms of the election bribery statute. Mr. Landgraf admits as much but eschews a "common sense" approach in favor of, among other relatively nebulous and extra-textual concepts, his hypothetical situations.

The ADA wasn't wrong — arguably his conclusion not to prosecute isn't unreasonable nor an abuse of his discretion — and it clearly was not an easy decision to arrive at. I reckon that but not for the "barbeque," WRtL would have gotten served a criminal complaint. So thanks to the heroes at Media Trackers — whose own testimony proved that its own accusations were complete bullshit — and the MacGyvers, who seemingly induced the Media Trackers "barbeque" witness* after another Media Trackers principal "refused to cooperate" with the DA's investigation.

In brief: Legal bullet dodged, because politics. They are often difficult to extricate from one another, there remains little question about that.

* Who testified he never even saw, let alone ate, any barbeque. Indeed, Mr. Landgraf's report is worth reading as much for its legal commentary as for its objective portrayal of Media Trackers' pathetic dishonesty.


Unknown said...

Good recap Illy T, thanks

illusory tenant said...

Somebody had to say it.