McCarthy v. Elections Board

480 N.W.2d 241, 166 Wis. 2d 481, 1992 Wisc. LEXIS 15
CourtWisconsin Supreme Court
DecidedMarch 2, 1992
Docket92-0348-OA
StatusPublished
Cited by2 cases

This text of 480 N.W.2d 241 (McCarthy v. Elections Board) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCarthy v. Elections Board, 480 N.W.2d 241, 166 Wis. 2d 481, 1992 Wisc. LEXIS 15 (Wis. 1992).

Opinions

PER CURIAM.

The court is again asked to exercise its original jurisdiction to review the decision of the presidential preference selection committee and issue a writ of man[485]*485damus directing the respondent Elections Board to place names on the ballots of political parties in the presidential preference election. We conclude, as we did in Labor & Farm Party v. Elections Board, 117 Wis. 2d 351, 344 N.W.2d 177 (1984), that this matter is publici juris and we exercise our original jurisdiction. We deem the allegations contained in the petition and the denials contained in the response are sufficient to stand as the complaint and answer in this original action. Because we conclude that the 1992 Presidential Preference Selection Committee failed to demonstrate that it exercised discretion in applying the statutory standard to David Duke, a declared candidate, and exercised no discretion with respect to five others seeking ballot placement, we direct that the names of those six candidates be placed on the presidential preference ballot as candidates of their respective political parties for the office of president of the United States.

A petition for leave to commence an original action was filed by four persons who had sought placement on the 1992 Wisconsin presidential preference ballot — Eugene McCarthy, Larry Agran, Lyndon H. LaRouche, Jr. and David E. Duke — and five persons eligible and intending to vote in the presidential preference election. Thereafter, the court permitted Emmanuel L. Branch to join the proposed action as a petitioner.1

[486]*486The Republican Party of Wisconsin and the Democratic Party of Wisconsin each filed a petition for leave to intervene in the proposed action. We grant those requests but, because of the time constraint in deciding the issues presented and granting effective relief,2 we limit that intervention to the facts and issues presented by the original petitioners and respondents. This limitation has in no way impaired the ability of either inter-venor to protect its interest, as each has filed written arguments, which have been considered by the court, and has, with leave of the court, participated in oral argument.

The relevant facts are not disputed. As disclosed by the minutes of its January 28, 1992 meeting, the 1992 Presidential Preference Selection Committee elected Professor Gordon Baldwin its chairman, pursuant to sec. 8.12(l)(b), Stats.,3 and unanimously adopted a motion to [487]*487place the names of Patrick Buchanan and George Bush on the Republican presidential preference ballot and the names of Edmund G. Brown, Bill Clinton, Tom Harkin, J. Robert Kerrey and Paul E. Tsongas on the Democratic presidential preference ballot. The minutes state that the Selection Committee then had "considerable discussion" on a motion by the Democratic National committeewoman, seconded by the Democratic National committeeman, to place the name of David E. Duke on the Republican ballot. Following that discussion, which is not described in the minutes, the motion was defeated: the chairman of the Republican Party of Wisconsin, the Republican National committeewoman, the Republican National committeeman, the minority leader of the Wisconsin Senate, the minority leader of the Wisconsin Assembly and the Selection Committee chairman voted against the motion; the Democratic National committeewoman, the Democratic National committeeman, the chairman of the Democratic Party of Wisconsin, the president of the Wisconsin Senate and the speaker of the Wisconsin Assembly voted in favor of the motion. Following the vote on that motion, the Selection Committee adjourned. The following day, the Selection Committee [488]*488chairman certified to the State Elections Board the names the Selection Committee had unanimously voted to be placed on the primary ballot.

At its meeting, the Selection Committee had been provided written information from the Wisconsin Legislative Reference Bureau and the Elections Board concerning possible 1992 presidential candidates and persons who had expressed a desire to be on the 1992 Wisconsin presidential preference ballot. The names of David Duke and Harold E. Stassen appeared among the names of persons who had declared Republican candidacy and the name of Eugene McCarthy appeared on the list of persons having expressed a desire to be on the Wisconsin ballot. Each of the remaining petitioners, Larry Agran, Lyndon H. LaRouche, Jr. and Emmanuel Branch, had informed the Selection Committee, directly or indirectly, of his interest in being placed on the ballot.

The issue presented for determination is whether the Selection Committee properly exercised its statutory discretion in not certifying to the Elections Board the names of Eugene McCarthy, Larry Agran and Lyndon H. LaRouche, Jr. for placement on the 1992 presidential preference primary ballot of the Democratic Party and the names of David E. Duke, Emmanuel L. Branch and Harold E. Stassen for placement on the 1992 presidential preference primary ballot of the Republican Party.

Section 8.12(1)(b), Stats., directs the Selection Committee "to determine and certify to the [Elections Board] . . . the names of all candidates of the political parties represented on the committee for the office of president of the United States." It also directs the Selection Committee to "place the names of all candidates whose candidacy is generally advocated or recognized in the national news media throughout the United States on the ballot."

[489]*489The statute further gives the Selection Committee discretion: (1) to determine the names of all candidates whose candidacy is "generally advocated or recognized in the national news media throughout the United States" and (2) "to place the names of other candidates on the ballot." Once it determines that a candidate's candidacy satisfies the news media advocacy or recognition standard, the Selection Committee must certify the name of that candidate for placement on the ballot. There is no statutory standard applicable to the "other candidates" category.

In reviewing the Selection Committee's actions here, we determine only whether the Selection Committee abused its discretion. Here, there is no evidence that the Selection Committee applied the news media advocacy or recognition standard to the candidacy of David Duke. No transcript of the Selection Committee meeting is in the record. The record contains the minutes of that meeting, which merely state, "Considerable discussion of Wisconsin law, and the United States Constitution followed the motion [to place Duke's name on the Republican ballot]."

In their briefs, the parties assert that much of the discussion concerned Mr. Duke's acceptability to the Republican Party as its candidate but nothing in the record indicates, much less establishes, that the Selection Committee's decision not to certify Mr. Duke's name for ballot placement was based on that consideration or on any other. Moreover, and more importantly, there is no evidence that it was based on the Selection Committee's having properly applied the statutory standard of media advocacy or recognition to Mr. Duke's candidacy. Thus, we conclude that the Selection Corn-[490]*490mittee abused its discretion in reaching its decision not to certify Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Dean Phillips v. Wisconsin Elections Commission
2024 WI 8 (Wisconsin Supreme Court, 2024)
McCarthy v. Elections Board
480 N.W.2d 241 (Wisconsin Supreme Court, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
480 N.W.2d 241, 166 Wis. 2d 481, 1992 Wisc. LEXIS 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccarthy-v-elections-board-wis-1992.