February 14, 2018 at 6:24 p.m.
Supreme Court again assaults the open records law
Supreme Court again assaults the open records law
To say that the 5-2 opinion to slam the government door shut on the Madison Teachers union (MTI) was fatuous would be too kind to the majority and its arguments. The bottom line is, the majority loudly announced a partisan verdict that had no basis in fact or logic or consistency or precedent or legal reasoning.
It was pure politics, dangerous and embarrassing, so embarrassing those justices might soon wish they had been able to use secret ballots to vote. And we should all probably ask to see their law degrees.
Here's what happened. Back in November 2015, a recertification election was held for Madison Teachers, Inc. It was a 20-day election, during which eligible voters could cast ballots in a number of ways, including online at home.
The union is popular in Dane County, as one would expect, but union officials wanted to take no chances. After all, they had to get 51 percent of all eligible voters, not just of those who voted.
In effect, not voting was a 'no' vote.
So, at different times during the nearly three-week voting stretch, union officials submitted open records requests for the names of those who had voted at that point. That would allow the union to mount a good old-fashioned get-out-the-vote drive for those who had not.
But one person's get-out-the-vote drive is another person's definition of coercion and so the state denied the requests, telling the union they could have the names after the election was over, when intimidation would be pointless.
At the Supreme Court, chief justice Patience Roggensack, who wrote the majority opinion, agreed with the state's assessment: "The public has a significant interest in fair elections, where votes are freely cast without voter intimidation or coercion. Accordingly, the public interest in elections that are free from intimidation and coercion outweighs the public interest in favor of open public records under the circumstances presented in the case before us."
Well, where shall we start with this hot mess?
First, in her decision, Roggensack tried to compare reaching out to urge someone to vote to blatant physical electioneering at a polling place, the latter of which can be seen as harassing those who have already come to the polls, presumably with their minds made up.
To Roggensack, though, both represent intimidation.
To be sure, screaming the name of a candidate in the face of a voter in line to cast a ballot can be upsetting, particularly if said candidate makes that voter want to puke. It's a lot different from calling someone on the phone and saying, "Hey, we noticed you haven't voted yet and thought we'd urge you to exercise your constitutional right."
In the latter case, the actual electioneering isn't as intense because people are typically calling lists of identified favorable voters to urge them to vote, rather than randomly approaching people who are voting and attempting to persuade them.
In fact, in this case the Madison teachers' union assured the state that it "w[ould] not engage in voter coercion or any other illegal election practices during the upcoming election," and there were no complaints filed to the contrary or any other evidence submitted that would indicate the union was engaged in harassment.
In effect, Roggensack was comparing apples to oranges - the whole purpose of the regulation of physical electioneering at polling places is to cordon off the polling station from quite observable acts of electioneering, to respect the spacial integrity of the ballot box by keeping campaigning away.
Get-out-the-vote drives are a different fruit - a form of campaigning but not undertaken at the physical location. That's why poll watchers are allowed within several feet of poll workers and that's why they can view polling lists to see who has voted - because they take that information somewhere else to do with it what they will.
In the case at hand, the voting booth might be a home computer, but the government cannot assume that the eligible voter is akin to an already decided voter waiting in line to vote. That voter may well have decided not to vote, or to vote the next day - placing them in the category of persuadable voters who can still be reached by a campaign.
Roggensack takes two different actions - observable acts of electioneering in the voting station and legitimate acts of campaigning among a still potentially persuadable audience - and erroneously conflates them into one coercive mechanism.
At the heart of this apple-to-oranges comparison is Roggensack's misunderstanding of the concept of a secret ballot. To Roggensack, a secret ballot means you should be able to conceal whether you vote or not, but we as a society decided a long time ago that that is not allowed. Voter lists are public, as they should be because voting is civic participation, and in a democracy civic participation must be transparent.
What's secret about a secret ballot is who you vote for, not whether you voted.
Such confusion about what is and what is not a secret ballot imperils the current practice of allowing poll workers to see voting lists at polling stations on Election Day. If a union can't see those lists - the same kind of lists, just in a different format - in a recertification election, then why would the practice be allowed on Election Day?
The majority appears to be throwing the baby out with the bath water.
Even worse, and most important, this view of the election process led the majority to consider the motives behind the union's open records requests for the lists. That is, they considered, in deciding whether the information could be released, the reason why someone might want the names, and one such reason was potential voter intimidation.
That goes against the tradition of the open-records law, and, in fact, it goes against the statutory language, as justice Ann Walsh Bradley pointed out, that a records custodian may not refuse to release a public record "because the person making the request is unwilling to be identified or to state the purpose of the request."
In the end it doesn't matter whether the union wanted the lists for coercion or for legitimate civic participatory purposes and get out the vote. It doesn't matter who is making the request, and it doesn't matter why they are making the request, for good or for evil.
What matters is whether the information itself should be public for you and for me, for everyone or no one.
The logic is, save for a few explicitly delineated exemptions, the business of government in a democracy is entirely public, and the government cannot decide who gets public information and who does not, or cannot base their decisions on what the custodians think the information will be used for.
In this case, the justices went way off the rails in an extreme instance of judicial activism, in which they effectively rewrote the open records law. They did so based on a tortured and flawed concept of a secret ballot, that one can keep not just the contents of their votes secret but the existence of the vote itself.
That's extremely dangerous, for public knowledge of who has voted is essential to preventing voter fraud: Sally Beep, a known Republican who hasn't voted in decades, might be surprised to learn that she has voted in three straight Democratic primaries, but she might never know at all if the voting lists aren't public.
Second, Roggensack's logic fails when she casts the denials as an appropriate delay. The majority thinks everything is hunky-dory so long as the records are released sometime. As such she is extraordinarily concerned about the potential coercion of voters - without any evidence that such coercion is going on - but not so much about potential retaliation when the names are released.
Justice delayed is justice denied: Either the records should be released when they are requested, or they should be denied.
Finally, Roggensack stuck a knife into the heart of the public records law - that whether information is public depends on the information and not on who is requesting it or what they do with it.
Allowing government officials to focus on the requesters when making a decision not only inescapably injects partisan politics into the process, it makes the politics predominant. One need only look at the case at hand: a conservative Supreme Court striking a blow against a liberal union. Take that.
Finally, there's the all important question of the judiciary's role.
Though we don't think so, it could well be that the definition of a secret ballot needs to be reconsidered. It could be - though we would vociferously oppose it - that the government needs to look at the requesters of information and what they intend to do with it. It could be - again, we would say no - that voting lists need to be protected.
But in each of those cases, that should be a legislative decision with full public debate, not the dictate of an activist judiciary.
In this sweeping and landmark case, five Supreme Court justices effectively rewrote the statutory language of a constitutional law and redefined the notion of a secret ballot. That's judicial activism at its worst.
It's not the first time, and this court needs to be called out for it.
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