Van Hollen suit allowed to proceed

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The state’s code of professional conduct for attorneys permits current Attorney General J.B. Van Hollen to sue one of his current clients, the Government Accountability Board (GAB). But whether it’s a proper use of his power is yet to be determined.

So ruled Dane Judge County Circuit Court Judge Maryann Sumi during a two-hour hearing inside a courtroom packed with interested parties on Sept. 24.

“The rules of professional conduct do not require the attorney general’s disqualification,” said Sumi.in her ruling. “Whether this action is a prudent or a justified exercise of the AG’s constitutional authority is a separate question, one to be decided at a later date.”

The judge also granted motions for intervention filed by the state’s Democratic and Republican parties, as well as a trio of other labor organizations, which could complicate the two original parties’ ability to either settle or resolve the suit by the Nov. 4 presidential election.

Lester A. Pines, appointed counsel for the GAB, argued that the code offered no provision explicitly permitting Van Hollen to sue a client he currently represents.

But Sumi sided with the Department of Justice attorney Steven P. Means, who said Van Hollen’s ability to sue a client is different from that of a private practice attorney, but is nonetheless protected by a specific provision in the revised Chapter 20 Rules of Professional Conduct.

The board could appeal the ruling, said Pines, but it will file a motion to dismiss the case on the grounds that Van Hollen does not have the authority, as attorney general, to sue the GAB.

“We’ll proceed to the next issue which is can the attorney general even do this. You will see in the coming days, when our briefs are filed, that he has absolutely no legal authority to bring this lawsuit,” said Pines.

Sumi set a responsive pleading date of Oct. 6, with responses to follow on Oct. 15 and Oct. 20. The judge indicated that she will decide the case on Oct. 23.

Should the case be decided on Oct. 23, less than two weeks would remain until the election and parties declined to comment on whether or not voter information for approximately 240,000 people could be cross checked in that time frame.

Republican Party counsel James R. Troupis said it would be “nearly impossible” to complete the checks within that timeframe.

However, Pines did note than an agreement beforehand is “possible” between the DOJ and the GAB, but he said the additional parties, specifically, the Republican Party of Wisconsin, could complicate matters.

Mark Jefferson, Executive Director for the Republican Party of Wisconsin, expressed disappointment in the judge’s timeframe for the case.

“It appears the other side is … trying to run out the clock,” said Jefferson.

On Sept. 10, Attorney General J.B. Van Hollen filed suit against the Government Accountability Board in an effort to get an overdue voter cross-checking system in place by the Nov. 4 election.

How the 2002 Help America Vote Act (HAVA) will ultimately be applied by the Dane County Circuit Court is a key aspect of the case, according to University of Wisconsin Political Science Professor John Coleman.

States were supposed to comply with the federal law, which required the creation of a central voter database to compare voter information with driver’s license records, by Jan. 1, 2004. Wisconsin and other states received waivers to delay activation of its database because of technical problems, and the state’s systems did not come online until this past August.

“The key dispute will be what does HAVA and state law require be done in cases where the databases don’t match, or when the cross-checking does not go all the way back to the waiver date [January 2006] received by Wisconsin,” said Coleman.

The suit states that people would not be removed from voter lists if their voter information does not match driving records, such as a missing middle initial or change of address. State records indicate that since Jan. 1, 2006 approximately 240,000 have registered to vote or changed their addresses by mail, which would constitute cross checks under the HAVA Act.

“Mostly the issue at hand here is mail-in registrations where there was no way to verify the information being provided, as opposed to registering in person or at the polls,” said Coleman.

In his suit, Van Hollen noted that “the stakes are enormously high,” and he asked the court to rule “quickly and decisively” or which candidate gets Wisconsin’s electoral votes for president “may be determined by illegal ballots.”

But the Democratic Party of Wisconsin (DPW) contends that the suit is purely a political ploy designed to suppress and confuse Wisconsin voters.

In a statement, the DPW said Van Hollen’s lawsuit seeks to seize on discrepancies such as hyphenated names or missing middle initials in different bureaucratic databases to create confusion and deny up to one million eligible Wisconsin voters of their right to vote.

Van Hollen is the Wisconsin co-chair of John McCain’s Campaign.

After the Sept. 24 hearing, parties did not speculate on what the impact of a victory or adverse ruling would be on the public and said they will diligently prepare their respective cases.

Portions of this story came from the Associated Press