Empower Wisconsin | Jan. 31, 2020

By M.D. Kittle

MADISON — An Oconomowoc mayoral candidate denied a place on next month’s primary ballot has filed a complaint with the Wisconsin Elections Commission alleging the city’s clerk abused her discretion and misapplied the law.

The little city case is wrought with big partisan politics and allegations that the controversial Elections Commission circumvented the law to settle a contentious nomination complaint. Coincidentally, the agency staff attorney who got involved in the complaint was a key player in Wisconsin’s abusive John Doe investigation.

Oconomowoc City Council President Louis Kowieski, known as a “business-friendly” conservative, is one of three candidates running for mayor. He filed his nomination papers on time with the city clerk on Jan. 7. Three days later, Oconomowoc resident Tara Lynn Fox challenged the petition’s signatures.

Fox is being represented by Milwaukee attorney Michael Maistelman, a Democrat who has served as lawyer for the Democratic Party of Wisconsin. Maistelman told the Waukesha Freeman that Fox is being assisted by the Waukesha County Democratic Party. The party chairman told Empower Wisconsin he was too busy to discuss the situation Thursday.

Kowieski, according to court documents, provided information to Oconomowoc Clerk Diane Coenen to clarify or correct any errors. Coenen struck several signatures and denied the challenges to others. She ultimately determined that Kowieski had filed 200 valid nomination signatures — the minimum amount needed to preserve his place on the mayoral ballot.

Fox subsequently appealed to the Elections Commission, alleging the clerk hadn’t struck enough signatures and that Kowieski’s name should be removed from the ballot.

Here’s where things get real tricky.

Five days later, Coenen released a one-sentence statement claiming that she messed up, and that she had seen the light from the Elections Commission.

“I used my best judgement when I made my determination on Jan. 15, 2020, however after consulting with the Wisconsin Elections Commission, I am persuaded that the sufficiency of nomination papers, that were filed by Louis Kowieski, candidate for the office Mayor of the City of Oconomowoc, did not meet the requisite number of valid nominations to qualify to be on ballot,” Coenen wrote.

So why the change of heart?

Apparently there was a counting error.

“Our staff reviewed the documentation, double-checked the math and discovered the city clerk made an error when determining 200 signatures were valid,” Elections Commission spokesman Reid Magney wrote in an email to Empower Wisconsin. “The city clerk recounted the number of signatures, confirmed the error and determined that only 198 signatures were valid following the initial challenge.”

Magney said agency staff didn’t do an analysis on the validity of the signatures themselves because “we never got that far.” Commission staff attorney Nathan Judnic called the clerk and told her of the counting error, Magney said. Coenen and the city’s attorney then reversed the original decision.

The clerk did not return Empower Wisconsin’s request for comment.

Kowieski charges the city clerk shouldn’t have struck as many signatures as she did. His complaint references state election law, something Coenen did in originally upholding Kowieski’s nomination papers.

“Any information which appears on a nomination paper is entitled to a presumption of validity” and “where any required item of information on a nomination paper is incomplete, the filing officer shall accept the information as complete if there has been substantial compliance with the law,” the law states.

The state Government Accountability Board, the Election Commission’s predecessor, followed the same rules during the 2011 recall campaigns against Gov. Scott Walker, Lt. Gov. Rebecca Kleefisch and six Republican senators. There was all manner of “presumption of validity” applied to the signatures collected in that liberal review process.

Kowieski also alleges the clerk’s jurisdiction ended when Fox filed her complaint with the Elections Commission. Judnic had no business placing a quiet phone call to the clerk because, by law, the Elections Commission had jurisdiction and was responsible for a final ruling. The commission’s failure to rule denies Kowieski the ability to appeal for judicial review, to sue for ballot access, he argues. So he is now appealing to the agency to do what it must do under law.

Magney told Empower Wisconsin the agency could not comment on the jurisdictional question.

“I’ve just been informed that Louis Kowieski filed a verified complaint in the last hour with the Wisconsin Elections Commission that raises some of these issues regarding jurisdiction,” he wrote in a follow-up email. “As a result, we don’t have any further comment until the Commission has had the opportunity to resolve the complaint.”

You may recall Nathan Judnic’s significant role in Wisconsin’s unconstitutional John Doe investigation. Judnic, who helped rally protests against former Gov. Scott Walker’s public sector collective bargaining reforms in 2011, was said to be in possession of files of illegally obtained documents in GAB’s spy operation against Wisconsin conservatives. Those files went missing, according to a 2017 investigation into the agency and their partners at the Democrat-led Milwaukee County District Attorney’s office.

Kowieski says the stink of politics is all over the case.

“Oconomowoc voters should make the decision who is Oconomowoc’s next Mayor, not the Democratic Party and an attorney who has worked for Democratic bigwigs like Tony Evers, Jim Doyle and Gwen Moore,” he said in a statement. “Sadly, the Waukesha County Democratic Party has decided to bring Washington style politics into our small community, but I’m hopeful the Elections Commission will allow Oconomowoc voters their day at the ballot box.”

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