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Constitutional Challenge to WI Photo ID Law for Elections

Political Hurdles for League of Women Voters' State Constitutional Challenge to WI Photo ID Law

Can case receive fair hearing before WI's partisan Supreme Court?

Guest editorial by Ernest A. Canning
August 24, 2011

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]:

If a law affects a fundamental right, such as the right to vote or to free speech, or if a law classifies people on the basis of a suspect criterion, such as race, alienage, or gender, courts subject the law to heightened scrutiny. In all other cases, courts apply the rational basis test to determine whether a law violates the equal protection clause.

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]:

Courts will uphold a law that affects a fundamental right against an equal protection challenge only if the law promotes a compelling governmental interest and is narrowly tailored to achieve that interest.

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:

Eight of the charges — all brought after 18 months after the 2008 election — were for ex-offenders in the community ineligible to vote because of their status as on paper felons. Two people were accused of voting twice and one was charged with trying to obtain an absentee ballot for a deceased spouse. Despite Van Hollen’s and Republicans’ assertions of widespread misconduct, Van Hollen’s charges represent four ten thousandths of one percent (0.0004%) of votes cast in 2008. Six others have been charged with falsifying registration papers, but Van Hollen has produced no evidence that any improper votes were cast as result of these alleged infractions.

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:

To steal even one vote by impersonation requires the impersonator to go to a precinct where he will not be recognized and the registered voter he intends to impersonate will not be recognized. The impersonator has to know that the registered voter has not already voted either in person or by absentee...

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).

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