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Senator Holperin Individual Challenges 52206

Senator Holperin Individual Challenges 52206

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Published by sara_schulz_1
This Memorandum is limited to an analysis of challenges to individual signatures, while an
accompanying Memorandum will address Senator Holperin’s circulator residence and fraud
challenges.....
This Memorandum is limited to an analysis of challenges to individual signatures, while an
accompanying Memorandum will address Senator Holperin’s circulator residence and fraud
challenges.....

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Categories:Types, Letters
Published by: sara_schulz_1 on Jun 08, 2011
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06/08/2011

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State of Wisconsin
 
 \ Government Accountability Board
 
__________________________________________________________________________________________
JUDGE THOMAS H. BARLAND
Chairperson
KEVIN J. KENNEDY
Director and General Counsel
212 East Washington Avenue, 3
rd
FloorPost Office Box 7984Madison, WI 53707-7984Voice (608) 266-8005Fax (608) 267-0500E-mail: gab@wisconsin.govhttp://gab.wi.gov
 
MEMORANDUMDATE:
For the June 8, 2011 Meeting
TO:
Members, Wisconsin Government Accountability Board
FROM:
Kevin J. KennedyDirector and General CounselGovernment Accountability BoardNathaniel E. RobinsonElections Division AdministratorGovernment Accountability BoardPrepared and Presented by:Shane W. Falk, Staff CounselDavid Buerger, Elections Specialist
SUBJECT:
Recall Petition Challenge: Senator Jim Holperin—Individual Signatures
I. Introduction:
Staff has prepared this Memorandum to summarize staff’s review of the recall petition and anychallenges, rebuttal, or reply thereto. This Memorandum is limited to an analysis of challenges to individual signatures, while anaccompanying Memorandum will address Senator Holperin’s circulator residence and fraudchallenges and the Brief of Amicus Curiae Kennedy Enterprises, LLC and any repliessubmitted thereto.
II. Summary of Verified Challenge of Individual Signatures:
A. Senator Holperin’s Verified ChallengeSenator Holperin’s Verified Challenge (paragraph 12) presents the following challengesto individual signatures:a.
 
At least 326 signatories to the recall petition did not date theirsignatures, dated their signatures outside the purported circulationperiod, or signed the recall petition subsequent to the respectivecirculator’s certification period. §9.10(2)(e)1-3, Wis. Stats.
 
For the Meeting of June 8, 2011Recall Petition Challenge: Senator Jim HolperinPage 2
b.
 
The residency of at least 1,407 signatories to the recall petition cannot bedetermined by the address given. §9.10(2)(e)4, Wis. Stats.c.
 
At least 1,073 signatories to the recall petition reside outside of the 12
th
 Senate District. §9.10(2)(e)5, Wis. Stats.d.
 
At least 2 signatories are not qualified electors due to age. §9.10(2)(e)7.,Wis. Stats.e.
 
At least 47 signatories to the recall election are not qualified electors, astheir names appear on the ineligible voter list provided by the G.A.B.§9.10(2)(e)8, Wis. Stats.f.
 
At least 231 signatories signed the recall petition twice. §9.10(2)(i),Wis. Stats.g.
 
At least 139 signatures appear on recall petition pages which were notproperly certified by the circulator. §§8.40(2) and 9.10(2)(em), Wis.Stats.Senator Holperin’s Verified Challenge (paragraphs 5-11,) and as further supported byExhibit 63-12, present the following additional challenges to individual signatures:h.
 
At least 2,894 signatures appear on recall petition pages with circulatoraddress issues, such as two different municipalities listed for thecirculator in different handwriting and incomplete circulator addresses.i.
 
At least 239 signatures are fake, circulator forgery, or signer forgery. j.
 
At least 4 signatures appear on an improper recall petition form.k.
 
At least 525 signatories claim not to have signed the recall petition(name forged) or were tricked into signing the recall petition.B. Memorandum In Support of Challenge to Individual SignaturesIn Section III of the Memorandum in Support of Senator Holperin Challenge toPetitions, Senator Holperin argues that the recall petitions are rife with disqualifyingomissions, inaccuracies, and other fatal defects. Senator Holperin summarizes the abovechallenges and refers to the underlying detail set forth in Exhibit 63-12. In Senator Holperin’sReply in Support of His Challenge to the Petition, Senator Holperin primarily focuses on hiscirculator residence and fraud allegations which are addressed in the accompanyingMemorandum. However, the reply also addresses the correcting affidavits provided by thePetitioner, arguing that many of them are invalid for evidentiary reasons.The “Memorandum in Support of Senator Holperin Challenge to Petitions,” “SenatorHolperin’s Reply in Support of His Challenge to the Petition,” and Exhibit 63-12 can be foundon the G.A.B. website at:http://gab.wi.gov/publications/other/recall-challenge-documents.C. Petitioner’s Rebuttal to Senator Holperin’s ChallengeIn the Petitioner’s Rebuttal Memorandum in Response to Senator Jim Holperin’sChallenge, the Petitioner argues that pursuant to §9.10(2)(g), Wis. Stats., Senator Holperin hasfailed to meet his burden of proving that certain individual signatures are invalid and that otherchallenges involve technical deficiencies which are corrected by numerous affidavits filed bythe Petitioner.
 
For the Meeting of June 8, 2011Recall Petition Challenge: Senator Jim HolperinPage 3
As to the challenges of individual signatures, the Petitioner notes that the majority of signatures Senator Holperin challenges are reflected in a series of spreadsheet printouts thatwere filed with his Verified Challenge as Exhibit 63-12. Further, the Petitioner argues thatSenator Holperin did not provide any affidavit that established what Exhibit 63-12 represents,how the information included in the exhibit was selected or what the purported challenges areintended to represent. While acknowledging that Senator Holperin does describe variouscategories of challenged signatures in his Verified Challenge, particularly in ¶ 12, thePetitioner argues that the G.A.B. should reject all the purported challenges reflected in Exhibit63-12 because Senator Holperin failed to demonstrate by affidavit or other supporting evidencethat the statutory requirements were not met by the Petitioner. The Petitioner’s assertionregarding this general rejection of all of the challenges is addressed and analyzed in SectionII(D) of this Memorandum, below.In Sections I-VIII of Petitioner’s Rebuttal Memorandum in Response to Senator JimHolperin’s Challenge, the Petitioner provides argument supported by affidavits in response tosome of Senator Holperin’s individual signature challenges.Petitioner’s “Rebuttal Memorandum in Response to Senator Jim Holperin’sChallenge,” the “Affidavit of John W. Hogan,” and affidavits numbered 1-25 can be found onthe G.A.B. website at:http://gab.wi.gov/publications/other/recall-challenge-documents.D. Analysis Regarding Form of Challenge:The G.A.B.
shall
review a verified challenge to a recall petition, if it is made prior tocertification. §9.10(2)(f), Wis. Stats. (emphasis added.) See also §§2.07(1) and 2.11(1), Wis.Adm. Code. Furthermore, the G.A.B.
shall review any evidence
offered by the parties whenreviewing a complaint challenging the sufficiency” of a petition. §§2.07(4) and 2.11(1), Wis.Adm. Code. Senator Holperin bears the burden of proof on challenges and that burden is clearand convincing evidence of an insufficiency. §9.10(2)(g), Wis. Stats. See also GAB§§2.07(3)(a) and (4) and 2.11(1), Wis. Adm. Code. “Any challenge to the validity of signatureson the petition shall be presented by affidavit
or other supporting evidence
demonstrating afailure to comply with the statutory requirements.” §9.10(2)(h), Wis. Stats. (emphasis added.)See also §§2.07(2)(a) and 2.11(1), Wis. Adm. Code. If the officeholder establishes theinformation on the petition is insufficient, the burden is on the petitioner to establish itssufficiency. §§2.07(3)(a) and 2.11(1), Wis. Adm. Code. Finally, the G.A.B. shall decide thechallenge with or without a hearing. §§2.07(2)(b) and 2.11(1), Wis. Adm. Code.1. Verified Complaint and AffidavitIn the legal context, “verification” means “a formal declaration made in the presence of an authorized officer, such as a notary public, by which ones swears to the truth of thestatements in the document.”
 Black’s Law Dictionary
, Seventh Edition, p. 1556, Garner,Bryan A., West Group, (1999). In the legal context, “affidavit” means “a voluntary declarationof facts written down and sworn to by the declarant before an officer authorized to administeroaths.”
 Black’s Law Dictionary
, Seventh Edition, p. 58, Garner, Bryan A., West Group,(1999).In Wisconsin, a verified complaint, affidavit of the facts, or sworn testimony are oftenpermitted to meet a burden of proof. See e.g. §799.22(3), Wis. Stats. (Upon a defendant’s

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