Monday, August 11, 2008


DIGGIN’ UP THE YARD: Our statement yesterday- based on various press reports- that Chief Elections Officer Kevin Cronin had no election experience in Wisconsin turns out to be wrong.

And one of the experiences he had was being sued for violating the voting rights of 80 black people in the town of Blackwell, Wisconsin in 1987 while he was legal counsel for the Wisconsin state elections board from 1983 to 1988.

The town sued Cronin apparently for giving them the advice not to allow them to vote, allegedly in violation of the Civil Rights Act of 1983, and the Voting Rights Act of 1965, the 14th and 15th amendments and Wisconsin state law..

According to filing in the US Court of Appeals, Seventh Circuit argued Feb. 25, 1987.and decided May 29, 1987 these were some of the facts.

The plaintiffs filed this action purporting to represent themselves and a class consisting of Blackwell Job Corps Center members who were denied their right to vote either because they were Black or because they were job corps members. The plaintiffs contended in their complaint that at a Blackwell polling place on November 6, 1984, they were asked by the defendant Henkel whether they intended to reside in Blackwell in the future. Those who did not answer in the affirmative were considered non-residents and ineligible to vote. Some apparently were not permitted to vote at all, while others were permitted to vote only in the presidential election. The plaintiffs assert that this action of Henkel and other Blackwell election officials violated the laws of Wisconsin, the 14th and 15th Amendments to the United States Constitution, the Civil Rights Act and the Voting Rights Act.

The Town and Henkel filed a third-party complaint against Cronin, an attorney for the State Election Board, wherein they alleged that Cronin advised a member of the Town Election Board that any person who indicated to election officials that he did not consider himself a resident of Wisconsin was ineligible to vote and should not receive a ballot. The third-party complaint further alleged that Blackwell election officials, acting upon this advice, refused to permit certain members of plaintiffs' class to vote. While the third-party complaint also named Nicolet National Forest as a defendant by reason of the fact that it administers the Job Corps Center at Blackwell, Nicolet was subsequently dismissed and there is no issue raised in the present appeals regarding that dismissal.

Though two lower courts would not dismiss the case against Cronin the US Court of Appeals, in a very complicated rationale and convoluted ruling found that Cronin had immunity in the case and so he could not be sued.

In overturning the lower courts rulings the Appeals Court 7th said:

(T)he Town and Henkel contend that Cronin forfeited his qualified immunity by violating clearly established Wisconsin election law, Wis.Stats. Sec. 6.92 et seq. In Wisconsin, when a voter is challenged as to residence, he is to be placed under oath and asked whether he intends to make his home in the ward in which he is seeking to vote. If notwithstanding the answer given, the vote is still challenged, the voter may take an oath that, among other things, he is a resident of the ward. He may then submit a ballot under challenge which is retained separately from unchallenged ballots. The fact that Cronin's advice did not include all of the implementing details under the Wisconsin statutes is plainly insufficient to permit a finding that Cronin violated clearly established Wisconsin election laws.

We do not mean to imply in so stating that had Cronin violated a Wisconsin election law, under the facts of this case, it would have constituted a violation of clearly established federal law. Cronin would forfeit his qualified immunity for liability under federal law by violating state law only if the violation of state law provided the basis for the federal cause of action. Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 3020 n. 12, 82 L.Ed.2d 139 (1984). We need not and do not address that issue in this case.

For the reasons stated, pursuant to the order issued in this case by this court on February 26, 1987, the cross-appeal of defendants and third-party plaintiffs Town of Blackwell and Jennie Henkel is dismissed for lack of appellate jurisdiction and the district court's denial of third-party defendant Kevin B. Cronin's motion to dismiss is REVERSED and REMANDED with instructions to dismiss him. Costs are taxed to defendants, third-party plaintiffs Town of Blackwell and Jennie Henkel.

In other developments and updates to yesterday’s column, the first reported- by Larry Geller at Disappeared News today- is an interesting California analysis of the Hart InerCivic voting machines that Cronin chose spurring an administrative ruling that he royally screwed up

It’s really scary to read how hackable the Hart system is and it’s clear that anyone reading what they found in California would not and could not have approved the Hart system unless they were either dumb or corrupt or both.

And Hawai`i is using those machines this November as it stands now.

Second is an interesting paragraph in an article at Wing-Nut-Central, the Hawai`i Reporter, by Republican Robert R. Kessler who says he filed two challenges to House candidate Isaac Choy’s eligibility as the Democratic replacement for Kirk Caldwell. He notes that although Cronin ruled that only Caldwell’s written withdrawal was official Cronin’s determinations may depend on what he ate for breakfast- or, for the cynical, who buttered his toast.

According to Kessler, Cronin wrote the following regarding the reporting of the replacement within the three day window the law requires.

“I authorized the Democratic Party of Hawaii to inform me of the name of the individual the Party appointed to fill the vacancy by email, fax or telephone no later than 4:30 p.m. on Saturday, July 26, 2008. The Democratic Party so informed me timely.”

All deadlines are apparently not created equal.

Maybe that can be explained by another interesting paragraph from a July 30 article in Honolulu Weekly.

In a piece by Travis Quezon on the “dance of the headless chickens” that occurred in Honolulu on and after candidate filing deadline called “You call this democracy?; Insiders' edge helps Democrats pull a fast one on Hawai`i voters” Travis tells us that:

“In a 2002 court decision involving then-governor Ben Cayetano petitioning for a writ that directs then-Chief Election Officer Dwayne Yoshina to wave time limits mandated under HRS §11-118, the court acknowledges that the election officer has discretion to waive any or all of the law’s requirements in “special circumstances.”

We haven’t been able to track down the case to which Quezon is referring yet but if that’s the law of the land it could go a long way toward explaining the arbitrary and capaciousness of Cronin’s rulings.

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