Nathan Sass

One Wisconsin Now – Meet Uncle RICO

In Politics, Scott Walker, Vicki McKenna, WI Budget Battle on January 31, 2012 at 8:34 PM

One Wisconsin Now, along with multiple affiliated groups, turned in recall petitions signed, allegedly, by 1 million Wisconsin residents on Tuesday, Jan. 17, 2011.  The Wisconsin Government [lack of] Accountability Board finally decided tonight to follow black letter law and release the scanned documents to the public.

After review, One Wisconsin Now et. al. may have a problem with that they haven’t considered. It could be a really big one, actually.

See, there is little thing called RICO that is a pretty powerful criminal, and more importantly, civil tool. You may recall (pun intended) the attempt to sue Pro Life groups under the RICO statutes. While the suit failed, it was certainly an expensive endeavor for the defendants, and a conviction/judgement under RICO was not a long shot.

So how can this statute have anything to do at all with the Wisconsin Recall Walker effort? Well…..let me just explain.

(Note: I am not a lawyer, but I play one on a blog. Kinda like Alec Baldwin played a pilot, I guess.)

First, the recall petitions state at the bottom of every copy the following:

I personally circulated this recall petition and personally obtained each of the signatures on this paper. I know that the signers are electors of the jurisdiction or district represented by the officeholder named in this petition. I know that each person signed the paper with full knowledge of its content on the date indicated opposite his or her name. I know their respective residences given. I support this recall petition. I am aware that falsifying this certification is punishable under S. 12.13(3)(a), Wis. Stats.” (emphasis added) (source)

WI Statute 12.13(3)(a) – only lawyers could number things like this – details crimes of election fraud, specifically:

Prohibited acts. No person may:
12.13(3)(a)(a) Falsify any information in respect to or fraudulently deface or destroy a certificate of nomination, nomination paper, declaration of candidacy or petition for an election, including a recall petition or petition for a referendum; or file or receive for filing a certificate of nomination, nomination paper, declaration of candidacy or any such petition, knowing any part is falsely made” (source)

Violation of this statute is a Class I felony, punishable by $10,000 in fines and/or 3.5 years in prison. Not small potatoes.

So a petition circulator knowingly certifying a recall petition that contains even one invalid signature is a Class I felony in the state of WI, and can be considered election fraud and falsification of legal documents. (Examples of knowingly false signatures would include names such as Mark Belling, Vicki McKenna, Charlie Sykes, along with Micky Mouse and Donald Duck.)

It also requires the circulator to be certain of the address and status as a valid elector of the petition signer. Reasonableness would require the certifier to ask for some proof that the signer is who they claim to be. Failure to request, or validate, such information is also a violation of the plain language of the petition disclaimer quoted above.

Should anyone find that their name has been affixed to a recall petition by anyone other than themselves, it is also identity theft fraud under the language of US Code TITLE 18 > PART I > CHAPTER 47 > § 1028 (8):

“(8)knowingly traffic in false or actual authentication features for use in false identification documents, document-making implements, or means of identification;” (source)

The affixing a signature, other than your own, is the use of an “actual authentication feature” with the intent to use it as a “false…means of identification”.  Presenting this false signature is furtherance of the fraud.

And THAT is the rub for One Wisconsin Now. Proffering such said false signatures is arguably a federal fraud violation that is chargeable (which is all that is required in a civil RICO case). RICO does not require that One Wisconsin Now be aware that a specific signature is fraud, only that a member of their association-in-fact knew (which is called a predicate act).

The predicate act in this case is the violation of WI statute detailed above, knowingly accepting a false signature and/or not requiring sufficient proof to meet the plain language of “knowing” a signer is a valid elector and is who they claim to be.

Since the collectors of the petition signatures were a member of an association in fact with One Wisconsin Now – among other groups – they are liable under RICO for furtherance of the fraud by submitting and obtaining gain from the predicate act. (Association in fact meaning a group that is affiliated to achieve a specific goal, even in the absence of a legal affiliation.)

A RICO suit may not succeed, but it is an interesting legal question. RICO was intended to prevent large organized efforts that used less than legal means to profit or gain. The fact that there are civil and criminal uses makes it pretty powerful, and open to use by private citizens in a civil action that can show harm. In this case, the harm would be a civil rights violation for voter fraud, identity theft, and disenfranchisement.

It would obviously be a question for a judge if this constitutes “harm” in a civil case, but the argument can be made it in fact does. For a person like Mark Belling, Vicki McKenna or Charlie Sykes, damage to their reputation and professional standing can be alleged, constituting actual harm.

For a lesser known person like you or me, harm can be defined simply as depriving me of my lawful rights as a voter, as well as unlawful use of identity.

It would be very, VERY, interesting to see a slew of lawsuits filed under the RICO statutes against One Wisconsin Now, AFSCME, SEIU and WEAC after the inevitable fraudulent signatures are identified. People who signed the names of famous conservatives and/or their friends who did not support the recall may have thought it was a harmless act and cute.

It may turn out to be a very expensive “harmless act” for One Wisconsin Now and those who have an association with the group, including the public sector unions, Democrat party and others.

If Wisconsin had an actual Attorney General, these acts may also result in jail time for those involved, all the way to the top of these organizations.  Unfortunately, J.B. Van Hollen seems more interested in keeping a low profile than he is in enforcing the laws.

If my name somehow made it on to a petition, I may seek out legal representation to explore filing such a suit.  There are some conservative legal foundations that may take up such a case.  I would encourage others to consider doing so as well. Your rights are just as sacred as those who did legally sign the petition, and you deserve protection to the fullest extent of the law.

Should these suits materialize, perhaps those seeking to recall elected officials will be far more careful and diligent about validating signatures, and playing by the rules.

Then again, the left doesn’t believe rules matter.  “By any means necessary”, after all.

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