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View Diary: Uh Oh - GOP Caught Red Handed + More (151 comments)

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  •  I don't think much will come of it (25+ / 0-)

    Here is what I think are the possibilities:

    1.  Forensic examination of the hard drives reveals that the redistricting was illegal and that the lawyers and legislative aids deleted documents that showed illegality AFTER the litigation commenced.

    Result:  Contempt citation, award of attorney's fees, fine, toss out the illegally-drawn districts.  Criminal prosecution is probably off the table.

    2.  Forensic examination reveals that documents were deleted, but are unrecoverable.  As a result, there is not enough evidence to overturn the maps.

    Result:  Fine, inference that the deleted documents would support the plaintiff's case.  Award of attorney's fees

    3.  Forensic examination reveals that documents were deleted after the complaint was filed, the documents are recovered and show that the redistricting complies with the law.

    Result:  Slap on the wrist, and maybe a fine.

    4.  Forensic examination reveals that the documents are not relevant.

    Result:  "Nothing to see here, foks.  Move along."

    As much as I would like to see No. 1 happen, I think that outcome is very unlikely.  Probably something between 2 and 3 will end up happening.  

    Puddytat is much closer to the action and may have a different take, but as for me, I'd be pretty surprised if anything big happens.  Let's hope I get surprised.

    I do not feel obligated to believe that the same God who has endowed us with sense, reason, and intellect has intended us to forgo their use -- Galileo Galilei

    by ccyd on Wed Mar 13, 2013 at 01:20:59 PM PDT

    [ Parent ]

    •  I'm hoping that the courts (27+ / 0-)

      re-open the redistricting and draw our districts themselves.  The current districts will keep Republicans in power forever in the Legislature and Congress regardless of the number of votes opposing them.

      There already is class warfare in America. Unfortunately, the rich are winning.

      by Puddytat on Wed Mar 13, 2013 at 01:32:52 PM PDT

      [ Parent ]

      •  not necessarily. maybe it is a time for a large (2+ / 0-)
        Recommended by:
        Puddytat, raincrow

        part of the population to "relocate" - at least, until the next census.

        single individuals - retired individuals - why not "move" into a red district for a few elections.  

        something to think about....

        EdriesShop Is it kind? is it true? is it necessary?

        by edrie on Wed Mar 13, 2013 at 10:34:14 PM PDT

        [ Parent ]

        •  If you are a student it makes sense (1+ / 0-)
          Recommended by:
          Puddytat

          to select a red state college for purposes of organizing for action; surely there are some you wouldn't have to be ashamed of mentioning on a resume and at the same time could use to change the stats for the next census.

          Colleges by State

          UTexas for example has an underwater archaeology program that would probably be an exception to an expectation that Red State colleges would be cheaper, more focused on sports and fraternity/sorority activities than academics and relatively easier for someone with a k12 education in a blue state to stand out at.

          Louisiana has Tulane, North Carolina has Duke and Wake Forest,  Michigan has Kettering; I'm not sure if it would make sense to pick one state to focus on so as to get the greatest effect or if there are enough Daily Kos reading high school students willing to make the sort of commitment that led to the integration of schools in the south so as to make this work.

          Live Free or Die --- Investigate, Incarcerate

          by rktect on Thu Mar 14, 2013 at 03:11:55 AM PDT

          [ Parent ]

    •  Where my lawyers at? (14+ / 0-)

      Does the deleted information make this a case of spoliation? Cause if it does, then this really is a BFD.

      I like to hide mine in the crack of a turkey.

      by DoobyOne on Wed Mar 13, 2013 at 01:40:50 PM PDT

      [ Parent ]

    •  it is hard to believe (22+ / 0-)

      that total destruction of all records of redistricting, a hotly contested act of the legislature that frequently results in lawsuits is going to be viewed as benign or part of a 'good faith' electronic records maintenance program.  

      The cases so far have been running heavily in favor of kicking ass and taking names at the least hint of a plan to have no plan and destroy everything or deliberate spoliation.

    •  Adverse inference (63+ / 0-)

      A damaged hard drive can be argued to be merely negligent destruction of evidence (although it's indicated that's not the case here).

      However, a deletion program has no business whatsoever being on a computer owned by the State of Wisconsin with its open records laws.  It clearly indicates an intent to destroy evidence.

      Adverse inference must thus be triggered: the evidence destroyed must be presumed to be harmful to the defendants' case.

      For this reason your possibility (2) is probably even worse for the GOP than possibility (1): the court can presume that the destroyed evidence was something that would invalidate the redistricting, that it said something like "we want to cram as many black people into the same district as possible to reduce their voting influence".  The onus would be on the GOP (technically the GAB are defendants here and GOP US congresscritters are intervenor-defendants) to prove it was something else, which they couldn't.  They would have no ability then to question the accuracy of the evidence that they had destroyed.

      If it's determined that the program was definitely used, or the hard drive was intentionally destroyed, then sparks will definitely fly.  The mere installation of that program might even be enough.

      Federal destruction of evidence carries up to 20 years of incarceration.

      Fake candidates nominated by the GOP for the recalls: 6 out of 7. Fake signatures on the recall petitions: 4 out of 1,860,283.

      by GeoffT on Wed Mar 13, 2013 at 02:23:21 PM PDT

      [ Parent ]

      •  Thanks for your input (11+ / 0-)

        Always valuable to get your take on these things.

        How likely is it that the courts would invalidate the maps and draw new ones?

        There already is class warfare in America. Unfortunately, the rich are winning.

        by Puddytat on Wed Mar 13, 2013 at 02:29:32 PM PDT

        [ Parent ]

        •  Remember the Texas clusterf*ck? (6+ / 0-)

          Texas legislature draws up illegal map, which gets invalidated.  I can't remember, but I think it went up to the Supreme Court, which affirmed the trial court's ruling.  Then Texas appoints a 3-judge panel to draw the districts.  That map is challenged by state Republicans.  The map is upheld at the District Court and the Court of Appeals and gets appealed to the Supreme Court.  Scalia does what he does, and sends the map back to the 3-judge panel to be redrawn.  I don't know where it stands now, but the new map was not in place for the election last fall.

          I do not feel obligated to believe that the same God who has endowed us with sense, reason, and intellect has intended us to forgo their use -- Galileo Galilei

          by ccyd on Wed Mar 13, 2013 at 05:21:29 PM PDT

          [ Parent ]

        •  IANAL, but a good possibility (11+ / 0-)

          A few things would need to happen:
           1. The court would have to re-open the case.
           2. The plaintiffs would have to prevail on at least one point they didn't before.
           3. The court would have to do the redrawing itself rather than tell the legislature to do it again.

          (1) I'd wager as more likely than not.  Any judge worth their salt would be seriously, seriously pissed off by the behavior of the defendants here.  Evidence has been withheld (repeatedly), evidence has been destroyed.  The defendants are owed nothing at all.

          On (2), looking at the original ruling:

          Claims 1 and 8 (equal population of districts and keeping communities of interest together, page 17) were dismissed - apart from the AD8/9 change - on the grounds that the district populations were very equal already, so despite the plaintiffs hitting a home run on the evidence front, they needed a grand slam.  With the presumption that evidence harmful to the defense was that which was destroyed, there's a chance of a change of mind there.

          Claim 3 (the number of voters shifted from even to odd districts, thus costing them an extra 2 years between opportunities to vote for senate representation, was unconstitutionally excessive, page 19) was dismissed because no particular group was singled out by the burden of it.  Since the geographical distribution of groups is a fact independent of what might have once been recorded on hard disks, this is unlikely to change.

          Claims 4 and 5 (redistricting was partisan, divided communities of interest and wasn't compact, page 20) were dismissed largely because the plaintiffs didn't provide a workable legal standard for deciding how much partisan gerrymandering is too much.  With the ability to presume that the redistricting was entirely motivated by partisan gerrymandering, the plaintiffs could propose an extremely low bar that Acts 43 and 44 fail to clear but would be nigh impossible for the defendants to argue was too high.  Any revisitation of this one with a test introduced would very likely wind up at the SCOTUS: Act 44 being more likely to prevail since the Democratic incumbents were consulted on the boundaries.

          Claim 6 (the Latino population of Milwaukee was unconstitutionally divided such that they formed large blocs of two districts rather than having one where they were in the majority, page 23) was upheld and led to the AD8/9 court redrawing.

          Claim 9 (whether recalls and special elections should be held in new or old districts, page 31) is now moot.

          Claim 2 (that redistricting prior to local muncipality changes violated federal standards), part of claim 6 (regarding making 6 African-American districts in Milwaukee while a seventh 'influence' district was possible), and claim 7 (race or ethnicity was the primary reason for drawing certain districts) were abandoned before trial.  Could the plaintiffs revive these, especially claim 7?  If they have any evidence for claim 7 together with the presumption that the destroyed evidence supported it, defendants would now be hard-pressed to refute it.  Claim 2, like claim 3, doesn't depend on anything that might be recorded on hard disk, and 6 and 7 only pertain to certain districts, so I can't see any of these leading to the entire map being thrown out.

          So I can see a chance for the prior verdict on claims 1&8 being changed, and the possibility of making history on claims 4&5.

          On (3), fat chance: the panel has already handed redistricting back to the legislature only to have it thrown back in their face.

          I'd guess that the best bet for an invalidation of all districts is claims 4&5 and the SCOTUS may be prepared to accept a new test of whether a gerrymander is constitutional or not as both workable and manageable.  From their 2004 decision in Vieth v. Jubelirer:

          A determination that a gerrymander violates the law must rest on something more than the conclusion that political classifications were applied. It must rest instead on a conclusion that the classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective.

          Fake candidates nominated by the GOP for the recalls: 6 out of 7. Fake signatures on the recall petitions: 4 out of 1,860,283.

          by GeoffT on Wed Mar 13, 2013 at 05:49:21 PM PDT

          [ Parent ]

          •  Since the new districts were used in (3+ / 0-)
            Recommended by:
            akze29, exterris, Creosote

            November 2012 and Republicans "won" a massive majority in the legislature and Congress despite Democratic candiates overall receiving 200,000 more votes is definitely evidence of gerrymandering IMHO.  Can the courts be swayed by this now established fact if they reopen the entire case?

            BTW - the "new" maps couldn't be used until the November 1012 elections in accordance to the redistricting law (Claim 9), but the GOP was trying to use them early to ensure victory in the recalls.

            There already is class warfare in America. Unfortunately, the rich are winning.

            by Puddytat on Wed Mar 13, 2013 at 08:36:58 PM PDT

            [ Parent ]

            •  I doubt it (3+ / 0-)
              Recommended by:
              Puddytat, akze29, pdx kirk

              It's not that redistricting with a political aim doesn't exist - that's well-established, and acknowledged by this panel of judges already.  The issue is that there doesn't exist any legal test for its constitutionality: provided that the redistricting follows constitutional principles of equal protection (equipartitioning and not disadvantaging any protected class - which doesn't include partisan affiliation) courts have had little choice but to wave them on.  At what point does the set of a hundred thousand lines that bound districts shift from being constitutional to being unconstitutional?

              The opportunity here is to suggest a legal test along the lines of "if the drawers of the map considered alternatives that they knew better met the constitutional condition of equal protection and discarded them because of the likely electoral results".

              Who is to say that the map drafters didn't consider better alternatives, discarded them, then deleted the evidence that they were even aware of the possibility?  I'll tell you who can't do that now: the defense.

              Fake candidates nominated by the GOP for the recalls: 6 out of 7. Fake signatures on the recall petitions: 4 out of 1,860,283.

              by GeoffT on Wed Mar 13, 2013 at 09:44:22 PM PDT

              [ Parent ]

          •  You MAWBAL :) (3+ / 0-)
            Recommended by:
            exterris, Puddytat, pdx kirk

            Most impressive analysis, thanks!  (from a recovering lawyer....)

            "A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence agst. foreign danger, have been always the instruments of tyranny at home." - James Madison

            by gharlane on Wed Mar 13, 2013 at 11:59:33 PM PDT

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      •  Thanks so much, GeoffT. (7+ / 0-)

        I like to hide mine in the crack of a turkey.

        by DoobyOne on Wed Mar 13, 2013 at 02:35:41 PM PDT

        [ Parent ]

      •  I really want this to be true (5+ / 0-)

        But are these state owned computers or MBF owned computers, and does it make a difference?  I think the GOP lawmakers intended for it to be a protection for them, when they had the work done outside of the capitol, at the MBF offices.

      •  Suddenly, paper copies or electronic backups (7+ / 0-)

        will magically appear if the judge is allowed to presume that what was erased was more damaging to the GOP than what it actually was.

        I hold no belief that the files are totally and irrevocably gone.

        •  I thought that destroyed evidence had to be... (4+ / 0-)

          IANAL, but I thought that destroyed evidence had to be treated as being as incriminating as possible to the destroyer, in order to discourage the destruction of evidence. If that's the case, doesn't that mean that all of the redistricting has to be thrown out?

          •  Doesn't help if there's a lack of imagination as (1+ / 0-)
            Recommended by:
            Puddytat

            to what the destroyed records might hold.  I mean, nobody could have imagined just how devastating Katrina could be, according to the Republicans.  The judges and other Republican investigators probably believe the legislators when they're told there's no there, there.

      •  Federal crime? (4+ / 0-)
        Recommended by:
        Lujane, Puddytat, WI Deadhead, entrelac

        Is there a federal crime?  It seems more like a state matter to me, but if there is a statute on point, then it could be.

        I do not feel obligated to believe that the same God who has endowed us with sense, reason, and intellect has intended us to forgo their use -- Galileo Galilei

        by ccyd on Wed Mar 13, 2013 at 05:15:49 PM PDT

        [ Parent ]

        •  Yep (5+ / 0-)
          Recommended by:
          Sunspots, Lujane, 3goldens, Puddytat, ccyd

          Fake candidates nominated by the GOP for the recalls: 6 out of 7. Fake signatures on the recall petitions: 4 out of 1,860,283.

          by GeoffT on Wed Mar 13, 2013 at 06:13:44 PM PDT

          [ Parent ]

          •  Thanks for the link (1+ / 0-)
            Recommended by:
            Puddytat

            The statute says it has to be a federal investigation, and I'm not clear on whether this is a federal or state investigation.

            I do not feel obligated to believe that the same God who has endowed us with sense, reason, and intellect has intended us to forgo their use -- Galileo Galilei

            by ccyd on Thu Mar 14, 2013 at 09:30:43 AM PDT

            [ Parent ]

            •  This is federal (2+ / 0-)
              Recommended by:
              Puddytat, Creosote

              Fake candidates nominated by the GOP for the recalls: 6 out of 7. Fake signatures on the recall petitions: 4 out of 1,860,283.

              by GeoffT on Thu Mar 14, 2013 at 09:49:46 AM PDT

              [ Parent ]

            •  Redistricting lawsuits, (2+ / 0-)
              Recommended by:
              GeoffT, Creosote

              by their very nature, are filed in Federal Court and usually heard by a 3 judge panel as this one was.  As I understand it, plaintiffs can ask the entire court to hear the case if they're not satisfied with the decision of the 3 judge panel, but they need to have a rather large mountain of evidence that the 3 judge panel was wrong in their decision.

              Currently, the plaintiffs in this case are working with the 3 judge panel as more evidence of documents has been found.  So far 55 documents still withheld by the GOP have come to light and the information of deleted and damaged hard drives seems to indicate the destruction of many, many others.

              There already is class warfare in America. Unfortunately, the rich are winning.

              by Puddytat on Thu Mar 14, 2013 at 10:23:17 AM PDT

              [ Parent ]

        •  I'm not holding my breath (0+ / 0-)

          waiting for the Justice Department.  Holder has been more interested in protecting the big shots and going after whistleblowers and small fry.

          There already is class warfare in America. Unfortunately, the rich are winning.

          by Puddytat on Wed Mar 13, 2013 at 08:38:12 PM PDT

          [ Parent ]

    •  I hope you get surprised. (1+ / 0-)
      Recommended by:
      Puddytat

      Really much.

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