Guest editorial by Ernest A. Canning
The League of Women Voters in Wisconsin announced it will file a lawsuit in Dane County Circuit Court charging that the Badger State’s newly-enacted polling place photo ID restriction law violates the state’s Constitution.
From a strictly legal perspective, the decision by the League’s attorney Lester Pines to challenge the new photo ID law pursuant to the state’s Constitution is significant.
Under Equal Protection analysis, any impartial jurist would readily understand that the statute does not meet the heightened scrutiny that accompanies the fact that, under the WI Constitution, voting is deemed a “fundamental right.”
While certain exclusions are allowed in the Constitution, such as laws which exclude felons or those whom the state deems “mentally incompetent,” the language explicitly notes that “every United States citizen age 18 or older who is a resident” of Wisconsin may cast a vote.
But therein lies the rub. Absent the removal of Justice David Prosser in connection with the allegations that he choked Justice Ann Walsh-Bradley, as is currently being investigated by a special prosecutor, the League’s constitutional challenge will run smack dab into a WI Supreme Court that sports a 4-3 majority of partisan ideologues in robes…
‘Right to vote’ subject to ‘strict scrutiny’ under WI law
Equal protection analysis turns on the level of scrutiny a statute must be subjected to. As observed by the WI Legislative Reference Bureau [PDF]:
Under the rational basis test, the Legislative Bureau notes, a law is “presumed constitutional” and need only be “rationally related to a legitimate state interest.”
Statutes that are subject to heightened scrutiny — as polling place Photo ID restrictions on the right to vote would presumably be — face a far more significant constitutional hurdle.
As the Legislative Bureau notes [emphasis added]:
Indiana’s polling place photo ID restrictions were not subjected to strict scrutiny at the federal level by the U.S. Supreme Court in Crawford vs. Marion County Election Bd. (2008), the landmark case that allowed first-of-its-kind Photo ID restrictions at the polling place. Absent some other suspect classification, such as race, voting is not treated as a “fundamental right” under the U.S. Constitution.
The WI Constitution, however, is different, in that it offers very specific language guaranteeing the right to vote. It is that difference which makes the League’s state constitutional challenge so powerful.
‘Compelling state interest’ cannot be found in a ‘Big Lie’
“We have right now a real danger of people that are illegally in the country being rounded up, herded into the polls. We’ve seen that in California, voting illegally.” –Rep. Duncan Hunter (R-CA), GOP Presidential candidate, 2007
“We are not aware of any documented cases in which individual noncitizens have either intentionally registered to vote or voted while knowing that they were ineligible.” – “The Truth About Voter Fraud,” Brennan Center for Justice, NYU Law School, 2007
As noted via Wikipedia, in Mein Kampf (1925), Adolf Hitler used the phrase, “the Big Lie” to describe “a lie so ‘colossal’ that no one would believe that someone ‘could have the impudence to distort the truth so infamously.'” Joseph Goebbels, the Nazi Minister of Propaganda, expanded upon that by adding that “when one lies, one should lie big, and stick to it.”
As we previously reported, the GOP and their hard-right echo chamber dissemblers (e.g., Matthew Vadum, Thor Hearne and John Fund) use the “voter fraud” canard so often that it should perhaps qualify as a “Big Lie.” That “Big Lie” not only gave rise to the infamous U.S. Attorney firing scandal but an effort to conceal and alter a federal report which exposed “fears of voter fraud” to be “overblown and exaggerated.”
Where WI Attorney General JB Van Hollen (R) has alleged, over a period of years, that there is “widespread voter fraud in Wisconsin,” One Wisconsin Now reports that Von Hollen documents only “11 potentially-improper votes cast out of 3 million Wisconsinites who went to the polls in November 2008.”
Out of those “11 potentially-improper votes,” none would have been prevented by the Republican Photo ID law:
The requirement of a photo ID presented at the polling place would not prevent anyone with a valid driver’s license from voting twice (e.g. once by absentee and a second time in person).
Milwaukee’s Journal Sentinel reports that, under the WI Constitution, the legislature may “exclude felons” from voting. However, as a convicted felon may obtain a WI driver’s license, the WI photo ID law is not “tailored” to prevent illegal voting by felons.
And even the one in three million event in which one otherwise eligible voter allegedly attempted to obtain an absentee ballot for his recently deceased wife would not be prevented by the Photo ID law which pertains only to votes cast at the polling place, as opposed to the improper absentee ballot the man tried to receive in his wife’s name.
The point made by the ACLU in its challenge to South Carolina’s similar polling place photo ID law is instructive. In support of its assertion that the SC photo ID law was but a “pretext” for unlawful discrimination, the ACLU cited “The Truth About Voter Fraud,” the 2007 study by the non-partisan Brennan Center for Justice at NYU Law School “which found that ‘voter fraud is extraordinarily rare’ but did not find a single incidence of voter impersonation” — for an obvious reason:
How can any impartial jurist find that a photo ID statute that potentially disenfranchises hundreds of thousands of legal voters was “narrowly tailored” to achieve a “compelling” state interest when even the state’s Republican Attorney General is unable to offer any instances in which voter fraud would have been prevented under the new law?
Voting rights vs. ‘Radicals in Robes’?
The biggest hurdle for the League of Women Voter’s challenge is not strictly “legal.” It’s political. Overcoming judicial activism on the current WI Supreme Court will be no easy feat.
That, despite the ironic statement issued by WI Supreme Court Justice David Prosser following his controversial election last April: “The people realized that judges should be much more than partisan politicians who wear black robes. Judges should be impartial in theory and in fact. They should faithfully apply the law without fear, and without favor.”
As I touched upon in “Citizens United: A Case Which Will Live in Infamy”, for more than three decades the American judiciary, at the state as well as federal level, has been undergoing a counterrevolution in law occasioned by a GOP-led assault and facilitated by the billionaire funded, Robert Bork founded Federalist Society.
Hiding behind sophistries, like “strict construction,” our courts have been increasingly packed with right-wing ideologues, or what Prof. Cass Sunstein aptly described as Radicals in Robes.
Nowhere is the damage wrought by right-wing court-packing more readily apparent than in the WI Supreme Court, which sports a radical-right 4-3 majority whose impartiality and ability to render a decision based on the facts and the law was questioned even by that court’s Chief Justice Shirley S. Abrahamson.
That 4-3 majority even includes one Justice, again, Justice Prosser, who acknowledges he actively participated in a partisan-motivated felony.
During the course of the highly questionable events entailing a “cascade of irregularities” which led to the electoral certification of Prosser as the fourth and deciding vote on the WI Supreme Court this past Spring, we published “The ‘Judicial Independence’ of Justice David T. Prosser – A BRAD BLOG Special Investigation”.
We detailed the links of Prosser, the former GOP Speaker of the WI Assembly, to the hornet’s nest of corruption that included not only his former number two man in the Assembly, convicted felon Scott Jensen, but Waukesha County Clerk Kathy Nickolaus (R), then a Prosser subordinate in the Republican Assembly Caucus. (That would be the same Kathy Nickolaus, who, two days after the 04/11/11 election, announced the addition of 14,000 votes from the City of Brookfield she says she failed to include in her Election Night totals. Those “new” votes transformed a bare 204 vote lead for Asst. Attorney General JoAnne Kloppenburg to an eventually-insurmountable 7,500 vote edge for Prosser.)
The crime at issue in the 2002 case we detailed in our Special Investigation was the misuse of state employees and resources for partisan political gain. Nickolaus evaded prosecution through a grant of criminal immunity in exchange for her cooperation with the prosecutors. Jenson, unlike a number of his colleagues who cooperated with the state investigation, ultimately avoided jail time thanks to a change of venue which finally placed his case in the friendly hands of Republican Waukesha County D.A. Brad Schimel.
As a sitting Supreme Court Justice, Prosser not only presented filings which made him an advocate for his former colleage, the accused felon, Jensen, but which amounted to a confession that he, Prosser, had participated in the very same crime for which Jensen was facing felony charges.
During the course of the Supreme Court election campaign earlier this year, the self-proclaimed “independent” David Prosser pledged fealty to GOP Gov. Scott Walker’s union-busting legislative agenda. He promptly demonstrated that fealty by issuing an eight page concurring opinion in support of the 4-3 majority’s decision to overturn a trial court’s temporary injunction, which concurring opinion Chief Justice Shirley S. Abrahamson criticized as being “long on rhetoric and long on story-telling that appears to have a partisan slant.”
On a previous occasion, an unapologetic David Prosser revealed that he lacks a judicial temperament when he called the Chief Justice a “total bitch” and threatened to “destroy” her.
Absent the removal of a “jurist” who confessed to participating in a partisan-motivated felony over the recent allegations that he choked Supreme Court Justice Ann Walsh-Bradley following a dispute over the union-busting legislation, one would be unduly optimistic to expect a fair hearing on the issue of whether the GOP photo ID restrictions violate the WI Constitution, or, for that matter, any other partisan-related issue.
Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).
Let me see now, the Constitution permits any Wisconsin resident who is 18 or older to vote.
Voter registration laws make sure that those who want to register to vote are in fact Wisconsin residents who are at least 18 years old. Requiring a photo ID at the polling place ensures that those who vote are actually the person who registered.
There is in fact a compelling government interest in making sure the person who votes is the one who is registered, is 18 years of age or older and is a Wisconsin resident.
This entire article is little more than rank partisan drivel.
The fact is that such a law will only prevent people who should not vote from voting. Anyone who has a problem with this is someone who promotes voter fruad.
JohnP foolishly averred:
Um, how do you figure? Especially since nobody in the state can seem to come up with a single example of an illegal vote that would have been stopped by such a law, even while tends of thousands do not have the Photo ID required to vote under and so will be disenfranchised in the bargain?
As I wrote recently concerning the GOP “voter fraud” fraudster Mathew Vadum’s rank, substance-free partisan propaganda (which you’ve repeated here) on this matter:
Compare that to the more than 20 million legal voters in the nation — the great majority of them Democratic-leaning — who, according to the NYU Brennan Center for Justice [PDF], the League of Women Voters, and many other non-partisan studies, would be unable to cast their legal vote unless they managed to obtain a state-issued Photo ID under the new GOP laws.
In Wisconsin alone, where last week we detailed the absurd video-taped hoops a voter was forced to jump through hoops at the DMV in order to obtain an ID for voting, some 300,000 previously-legal voters, according to a University of Wisconsin poli-sci professor David Canon, will no longer be able to cast their legal votes next year unless they quickly come up with the free time, money, and resources to obtain an ID deemed acceptable by the state. (Ironically, but not accidentally, student IDs from the University of Wisconsin will not be acceptable.) The law, according to a 2005 U-W study [PDF], will have a vastly disproportionate affect on minorities, students, and the elderly — in other words, Democratic-leaning voters.
And from another recent article of mine, on the video tape taken at the WI DMV showing the absurd hoops one must jump through to get a “free” ID there, I quoted from a 2005 study [PDF] by John Pawasarat of the University of Wisconsin-MI’s study which found:
Minorities and poor populations are the most likely to have drivers license problems. Less than half (47 percent) of Milwaukee County African American adults and 43 percent of Hispanic adults have a valid drivers license compared to 85 percent of white adults in the Balance of State (BOS, i.e., outside Milwaukee County). The situation for young adults ages 18-24 is even worse — with only 26 percent of African Americans and 34 percent of Hispanics in Milwaukee County with a valid license compared to 71 percent of young white adults in the Balance of State.
…
Only 65 percent of adults in Milwaukee County have a current and valid Wisconsin drivers license, compared to 83 percent of adults in the Balance of State.
…
At UWM, Marquette University, and the University of Wisconsin-Madison, a total of 12,624 students live in residence halls, but only 280 (2 percent) have drivers licenses with these dorms’ addresses.
And for good measure, the AFL-CIO notes the same study shows:
So, what was your point again? And what actual evidence do you have to support?
Yeah. That’s what I thought.
I think the problem is not that it will prevent people from voting who are not eligible to vote, but rather that it will prevent people that are eligible to vote from voting. That is disenfranchising the people who don’t have a driver’s license, predominately poor working class people, the elderly, and students who do live in the state but don’t have a driver’s license there.
You beat me to my reply. I wouldn’t fault you for not posting it now that it’s redundant.
Re JohnP @1:
You would have done well to read “Scot Ross: Why voter ID bill may be unconstitutional” which I linked to in the article.
• Over 178,000 elderly Wisconsinites.
• 17 percent of white men and women.
• 55 percent of African-American men and 49 percent of African-American women.
• 46 percent of Hispanic men and 59 percent of Hispanic women.
• 78 percent of African-American men age 18-24 and 66 percent of African-American women age 18-24.
Additional statistics about Wisconsin lack of accessible Division of Motor Vehicles offices compared to Indiana:
• 26 percent of Wisconsin’s 91 DMVs are open one day a month or less, while none of Indiana’s are open less than 100 days a year and nearly all are open over 250 days a year.
• Wisconsin has only one DMV with weekend hours, while Indiana has 124 offices with weekend hours.
• Three Wisconsin counties have no DMVs, no Indiana county is without a DMV.
• Over half of Wisconsin’s 91 DMVs are open on a part-time basis, while Indiana provides full-time DMVs in every county.
John P. correctly observes:
So if those 178,000 registered elderly voters have already established that they are “in fact Wisconsin residents,” and if the WI Attorney General cannot point to a single reported case in which an elderly registered voter cast a ballot at a time when they were not, can you explain to me what the “compelling state interest” there is in imposing this new hurdle to their ability to exercise the right to vote in a state which constitutionally establishes that right as “fundamental”?
GOP insistence on such a hurdle to voting stems not from a desire to prevent a problem that does not even exist — “voter fraud” — but from a desire to prevent those who are not likely to vote for GOP candidates from exercising the franchise.
“I don’t want everybody to vote,” Paul Weyrich, co-founder of the billionaire-funded Heritage Foundation and the Moral Majority, said while addressing a right-wing Christian audience in 1980. “[O]ur leverage in the elections goes up as the voting populace goes down,” he added after he denigrated those who seek “good government” through maximum, informed voter participation as people who suffer from the “goo goo syndrome.”
Oh, one more point, JohnP.
What you call “partisan drivel” is actually application of the rule of law.
Your comment reminds me of President Truman’s response to “Give ’em Hell, Harry!”
Truman said: “I just tell the truth, and the Republicans think that’s Hell.”
here here, Mr. Canning…this is a brilliant, detailed piece that frankly, as a WI resident, chills me to the bone. As soon as I heard a republican prosecutor was assigned to the Prosser case, I knew charges would be dropped. That 4-3 advantage on the state supreme court, as this article correctly points out, is a gigantic road block to democracy. It saddens me that no matter how much we protest and fight, those GOP partisan edges will always screw us progressives. That is wrong on a million levels and has to have our founding fathers turning in their graves. As for the voter ID stuff in general, the only voter fraud is the GOP fraud to suppress voters who tend to vote against them–any conservative to supports “voter fraud” is by association, a fraud. I guess the best thing we can do is to keep fighting,and keep educating the waffle-ating public, because the alternative is worse–letting the GOP roll over us.
Check out Zócalo Public Square’s upcoming event, “Direct Democracy: The Cause of California’s Problems or the Solution?†This event was made possible by the League of Women Voters and the California Supreme Court Historical Society. Wednesday October 5th, 7:30pm at the Downtown Independent (251 S Main Street). To make a reservation, please visit the site: http://zocalopublicsquare.org/upcoming.php?event_id=491