[EL] Due Process

[Lowenstein, Daniel]

          In Wisconsin now, as in Florida in 2000, the controversies arise in questions of process, so it is natural to think of the Due Process Clause as the primarily applicable constitutional provision.  But the Fourteenth Amendment does not require due process of law in the abstract.  It prohibits the deprivation of life, liberty, or property without due process of law.  It is not easy to find a deprivation of life, liberty, or property, either in the Florida controversy or in Wisconsin.

             Best,

             Daniel H. Lowenstein
             Director, Center for the Liberal Arts and Free Institutions (CLAFI)
             UCLA Law School
             405 Hilgard
             Los Angeles, California 90095-1476
             310-825-5148


________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen [rhasen at law.uci.edu]
Sent: Friday, December 16, 2011 7:55 AM
To: law-election at UCI.EDU
Subject: [EL] ELB News and Commentary 12/16/11
Walker Recall Petitions: Why Equal Protection?<http://electionlawblog.org/?p=26653>
Posted on December 15, 2011 8:27 pm<http://electionlawblog.org/?p=26653> by Rick Hasen<http://electionlawblog.org/?author=3>

Following up on this post<http://electionlawblog.org/?p=26616>, and this response from Ann Althouse<http://althouse.blogspot.com/2011/12/gov-walker-sues-to-require-government.html>, I started seeing a different parallel to Bush v. Gore.  One of the smartest pieces on the doctrine of Bush v. Gore is Roy Schotland’s article<https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=34+Loy.+U.+Chi.+L.J.+211&srctype=smi&srcid=3B15&key=247792defa2ac5cb720ea50557fdad67> on why the case was really about due process (as in, arbitrary and disparate government treatment of votes). That fits much better than the Bush v. Gore‘s equal protection idea of the counting as valuing one voter over that of another.

It strikes me that there’s a similar dynamic here.  I don’t know enough about what is happening in Wisconsin to know if the description in Althouse’s post is correct.  But if it is true that the G.A.B. is both refusing to verify the accuracy of signatures without evidence of inaccuracies from challengers, and failing to give challengers enough time to compile that evidence, that could well be a due process violation.  At least that seems like much less of a stretch than the argument that the G.A.B. procedures is violating the equal protection rights of Wisconsinites who don’t sign the recall petitions.

UPDATE: Joshua Spivak weighs in<http://recallelections.blogspot.com/2011/12/mickey-mouse-signatures-and-wisconsin.html>:

The argument that Walker will only have 10 days to review the signatures (if that limit remains) is mitigated by the fact that Walker and his family are not checking signatures with some hearty band of volunteers. Every single signature examined by the GAB will be closely watched by at least two sets of well-trained, and possibly well paid, eyes from both sides of the aisle. This recall, like the earlier Senate ones, involves two heavily financed sides, both willing to spend whatever it takes to win. Let’s not let that fact escape our mind.

[cid:part1.07030501.02040706 at law.uci.edu]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26653&title=Walker%20Recall%20Petitions%3A%20Why%20Equal%20Protection%3F&description=>
Posted in direct democracy<http://electionlawblog.org/?cat=62>, recall elections<http://electionlawblog.org/?cat=11> | Comments Off
--
Rick Hasen
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UC Irvine School of Law
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