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By Danny Cevallos

The Wisconsin Senate voted this week to pass wide-reaching bills in a lame-duck session that would empower the GOP-controlled Legislature and weaken the incoming governor and attorney general, both Democrats who are replacing Republicans.

Attorney General-elect Josh Kaul, as a soon-to-be member of the executive branch, has suggested on MSNBC that there will be multiple lawsuits challenging the legislature’s supposed appropriation of executive authority, in violation of the “separation of powers” doctrine. (Kaul is succeeding Brad Schimel, while Tony Evers is succeeding Gov. Scott Walker.)

The “separation of powers” doctrine, while not in the Wisconsin Constitution, is implicit in the division of powers among the judicial, legislative and executive branches, and is a foundational principle of Wisconsin’s tri-partite system of government.

The state Constitution creates the same three separate, coordinate branches of government that are a feature of the American federal government. No state government branch is to assert control over, or exercise the power constitutionally committed to, one of the other branches.

That means the legislature in Wisconsin has a “core zone” of exclusive authority into which the executive and judicial branch may not intrude. In these core areas, any exercise of authority by the judiciary would be unconstitutional.

On the other hand, the majority of governmental powers among the branches also overlap within areas of shared authority. In these areas of “shared power” one branch of government may exercise the power possessed by another branch, but only if it does not unduly burden or interfere with that other branch’s power. The challenge is determining which areas are “shared” between the legislative and other branches, and which areas are core, unquestionable legislative branch powers.

Democrats likely will take the position that it is the state judiciary’s long-recognized duty, recognized since the U.S. Supreme Court’s 1803 decision in Marbury v. Madison, to entertain a lawsuit challenging the acts of the legislature for any conflict with the Wisconsin constitution.

The Wisconsin Supreme Court has adjudicated disputes about the constitutional functions of the other state government branches, notwithstanding the fact that a case involves political considerations or consequences. But a Wisconsin court reviewing the Democrats’ potential challenge to the Republicans’ legislative power would also have to consider whether this dispute involves a “nonjusticiable political question.”

If Democrats filed suit over the Wisconsin legislature’s actions, the courts may invoke the “political question” doctrine to decline to adjudicate issues better left resolved by the legislative branch. If the challenged action is exclusively committed to the legislative branch,, it may be described as a “political question.” This means it may be “nonjusticiable” by the courts. The rationale is this: If the courts could review and overturn everything a legislature did, then the judiciary would effectively usurp the power of another branch of government.

It’s hard to determine whether, in a particular case, the court should review the actions of the legislature for constitutionality, or whether it should stay out of the dispute because that issue is solely the province of the legislature.

For example, Wisconsin courts have in the past considered the legislature’s adherence to its own procedural rules a matter entirely within the legislature’s control, and not subject to judicial review. Wisconsin courts will not invalidate a state law because of the legislature’s failure to comply with its own procedural rules, so long as all constitutional requirements have been followed.

The Wisconsin Democrats’ prospective legal action against the lame-duck actions of the Republican state legislature will base their challenge on a violation of separation of powers. The Republicans will likely counter with the argument that these legislative acts are one of the core powers reserved to the legislature, and therefore, the acts of the GOP lawmakers constitute a “nonjusticiable political question” — one the courts cannot review.

Danny Cevallos is an MSNBC legal analyst. Follow @CevallosLaw on Twitter.



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BREXIT CRISIS: Urgent Cabinet talks held as Theresa May scrambles to avoid defeat

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THERESA May summoned senior ministers to Downing Street for urgent talks on her contentious Brexit deal today as she desperately attempts to rally support ahead of a crucial Commons vote next week.

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George H.W. Bush remembered by family, friends at Texas funeral

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By Dartunorro Clark

Former President George H.W. Bush was remembered by family and friends as a humble leader with the “courage of a warrior” at a second funeral at the St. Martin’s Episcopal Church in Houston on Thursday.

James Baker, a close friend who served as Bush’s secretary of state and chief of staff, delivered the first eulogy, sprinkling his tribute with humorous personal stories and praise for the former president as a man of strong faith and quiet humility.

“Yes, he had the courage of a warrior. But when the time came for prudence, he always maintained the greater courage of a peacemaker,” Baker said, referring Bush’s role in maintaining diplomacy after the Berlin Wall fell during his administration.

“He understood that humility toward, and not humiliation of, a fallen adversary was the very best path to peace.”

Baker, who was with the president during his last days, also drew laughs from the audience when describing the heated discussions he would have with the president about domestic issues and world events.

“He would look at me and he’d say, ‘Baker, if you’re so smart, why am I president and you’re not?’ He was a leader and he knew it,” Baker said.

Bush, who died Friday at age 94, was also honored Wednesday at a state funeral at the Washington National Cathedral, which was attended by a host of world leaders and current and former presidents and first ladies.

The Thursday funeral is mainly for close friends to the former president and his family, who also attended Wednesday’s service. Several of his granddaughters read from scripture during the beginning of the service.

Baker choked up toward the end of his eulogy, describing his friend as a consummate statesman.

“He was not considered a skilled speaker, but his deeds were quite eloquent—and he demonstrated their eloquence by carving them into the hard granite of history,” he said.

“We rejoice…that you are safely tucked in now, and through the ages, with God’s loving arms around you. Because our glory, George, was to have had you as our president, and as such a friend.”



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North Carolina investigators zero in on absentee ballots in unresolved House race

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By Leigh Ann Caldwell and Rich Gardella

ELIZABETHTOWN, N.C. — Pressure is increasing on North Carolina to find a resolution to the unresolved congressional race in the state’s ninth district as more allegations of election irregularities and fraudulent activities continue to surface.

State investigators are combing through local election board records in several counties to discover whether the votes on thousands of absentee ballots appear to have been impacted by such activities, and may now be in question.

They are especially interested in Bladen County, a rural area in the southeastern part of the state where investigators are looking at several individuals who turned in requests for absentee ballots on behalf of hundreds of voters.

The results of the investigation could put in jeopardy Republican congressional candidate Mark Harris’ unofficial lead of 905 votes over Democrat Dan McCready in the race.

The Charlotte Observer’s editorial board Wednesday called for the state to hold a new election while U.S. Representative Gerry Connolly, D-Va., a top Democrat on the House Oversight Committee, said that committee should investigate the matter.

Meanwhile, some voters in the district are now speaking out, with personal accounts about how their absentee ballots were unlawfully collected.

Datesha Montgomery told NBC News that a blond woman came to her door on October 12 and asked if she could collect her absentee ballot.

“I told her, ‘sure.’ I had broke the seal in front of her to show it was never opened,” Montgomery said. “I’m telling her who I was voting for, and she was like — she didn’t wanna hear it, so I just like, didn’t say nothing else. I just filled out two blocks, and I gave it to her.”

Montgomery, who is 27 years old and lives with her four-year old daughter in a neatly manicured public housing complex named Twisted Hickory just outside of Elizabethtown, N.C. in Bladen County, said she gave her unsealed absentee ballot to the woman, believing her to be an election official who would turn the ballot in for her.

She found out that her ballot was never turned in to the state, she said, when two investigators showed up at her house, telling her it wasn’t submitted.

So she went to a polling place on Election Day to cast her vote in person.

Eighty-seven year-old Emma Shipman of Tar Heel, N.C. had a similar story. A blond woman showed up at her door to encourage her to turn in her absentee ballot, she told NBC News. But Shipman said she wouldn’t give it to the woman.

“I have plenty of stamps,” Shipman said after the woman said she’d provide a stamp to mail her ballot for her.

Under North Carolina law, only the voter, a relative or a postal delivery person (U.S.P.S., UPS, or Fed Ex) can deliver an absentee ballot.

Both Shipman and Montgomery said they had signed affidavits sent to the North Carolina State Board of Elections and Ethics Enforcement to be used as evidence in the board’s ongoing investigation into fraudulent activity regarding mail-in absentee ballots in several counties, but in particular Bladen County, which is a rural, low-income section of the southeastern part of the state that has a population of 33,500.

Emma Shipman, 87, of Tar Heel, N.C., said a woman attempted to illegally collect her absentee ballot.Leigh Ann Caldwell / NBC News

The board has not certified the election results in the congressional race, and is now conducting an investigation.

Last Friday, the board voted 7-2 in favor of “holding a public evidentiary hearing into claims of irregularities and fraudulent activities related to absentee by-mail voting and potentially other matters in the 9th Congressional District contest.”

In a press release, the board stated that “in light of claims of numerous irregularities and concerted fraudulent activities related to absentee by-mail ballots and potentially other matters,” it will hold an “evidentiary hearing” on or before December 21. The hearing will examine whether irregularities or fraudulent activities affected a “sufficient number of votes” to change or taint the results or outcome of the election, or cast doubt on its fairness.

The board is looking into 14,056 absentee ballots requested for voters across the congressional district, according to Josh Lawson, the board’s general counsel. 10,651 of these were returned; 3,405 were not returned. The board has concerns about whether irregularities and fraudulent activities could have impacted ballots in both categories — ballots illegally completed or tampered with and counted, or ballots illegally discarded.

Harris racked up a winning margin of 1,557 votes in Bladen County and 60 percent of the absentee ballots were cast for him even though just 19 percent of those ballots were cast by registered Republicans.

According to state law, the State Board may order a new election if one of the following conditions are met: There were enough ineligible voters to change the results of the election and it’s not possible to determine how they voted; enough eligible voters to change the results were not allowed to vote; other irregularities affected enough votes to change the outcome or “irregularities or improprieties” were widespread enough to “taint the results of the entire election and cast doubt on its fairness.”

Both Shipman and Montgomery, who say they don’t know each other, identified the woman who came to collect their ballots as Lisa Britt.

Britt has been connected in press reports to McCrae Dowless, a Bladen County water and soil commissioner.

According to the board, allegations about Dowless’ operations and activities involving absentee ballots are now a focus of its investigation. According to state records, Dowless has a criminal background that includes a fraudulent insurance claim.

Dowless was hired by the Harris campaign as well as other local campaigns, according to the Washington Post, to help in Bladen County.

In an election night speech at his headquarters, Harris thanked two counties — Bladen and Union — for putting him over the top.

On Wednesday, the board announced that its newly appointed chairman, Joshua Malcolm, had written a letter directing staff to review and post documents relating to the investigation in an “online portal” for the public to see.

One of the publicly released documents, an “office record” maintained by the Bladen County Board of Elections, shows that Dowless himself turned in 590 absentee ballot request forms between late August and early October.

The same document showed that a Jessica Dowless, who is described by BuzzFeed News as a distant relative of Dowless, turned in 185, a total of 775 absentee ballot request forms between the two.

Additional documents obtained by NBC News from an attorney working with Democrats to find information to pass on to state investigators indicate that Jessica Dowless and a half dozen others were signed witnesses to more than at least 150 absentee ballot applications.

Other signatories to the applications include Sandra Dowless, Britt’s mother. Cheryl Kinlaw and Ginger Eason also signed dozens of applications as witnesses.

NBC News has tried to reach every signatory on the absentee ballot applications it received. Sandra Dowless said she “had nothing to say” and attempts to reach Jessica Dowless, McCrae Dowless, Lisa Britt and half a dozen others who signed absentee ballot applications obtained by NBC News via phone calls and knocking on their doors were unsuccessful.

Kinlaw said she was paid $100 to collect absentee ballots. “I feel bad now that I know that it wasn’t legal, but I didn’t know at the time,” she told WSOC in Charlotte.

Election fraud allegations in Bladen County have been impacting the state for at least two years, which is when the state board asked law enforcement to begin investigating.

Another document released Wednesday by the State Board of Elections and Ethics Enforcement shows that it had begun acting on concerns about absentee ballots before Election Day. The document was a letter mailed to every voter requesting an absentee-by-mail ballot in Bladen County during the 2018 general election, warning that “only you or your near relative or legal guardian can mail or deliver your ballot to the elections office,” and that “only you can vote your ballot.” It was sent between October 29 and November 2.

This fraud comes amid an ongoing political fight in North Carolina where voter fraud has become a wedge issue for voters and political parties. In 2013, the Republican legislature and the former Republican governor implemented a strict voter ID law to prevent voter fraud. After a federal court determined that the law was unconstitutional, a pared down version of the voter ID requirement was put to the voters, who approved it in the last election.

Senate Majority Leader Chuck Schumer implored Republicans to be concerned about the allegations in North Carolina in a tweet Thursday night, referring to Thomas Farr, the Raleigh-based attorney that all Democrats and two Republicans blocked from a district court judicial nomination because of his work defending the strict voter ID law.

The Democratic Party has dispatched additional lawyers and staff on the ground to collect sworn affidavits of unlawful activity regarding their absentee ballots.

The board is made up of nine members: Four Democrats, four Republicans and one independent. Two of its Republican members voted in favor of the hearing — John Malachi Lewis, who has served as a deputy counsel for the North Carolina Republican Party, and Stacy Eggers IV (R). Two voted against — Ken Raymond, the board’s secretary and John Randolph “Jay” Hemphill.



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