Prediction: Wisconsin High Court to Rule Voter ID Violates Constitution

Present your papers or you cannot vote,
 Republicans want Wisconsin Act 23 back
to block the wrong kind of voters

If-ya-can't beat 'em, disenfranchise 'em. The purpose of photo ID can be seen in the adverse impact on the poor, the elderly, minorities and students, none of whom tend to vote for GOP candidates. This is by design.

But the Wisconsin Court of Appeals District IV blew a major voting rights case, and badly, reversing the decision in League of Women Voters of Wisconsin Education Network, Inc and Melanie G. Ramey, et al v. Scott Walker, et al.

And word is getting around fast in the Wisconsin legal community some 35 days after the publication of the opinion.

An editorial in today's Capital Times is optimistic that the Wisconsin Supreme Court will ultimately rule that the GOP-passed Voter ID law is unconstitutional.

Most jurists contacted the last two years agree the photo voter ID law will be struck down under the Wisconsin Constitution's expansive guarantee to vote.

Two jurists, with whom I have not spoken, disagree. The most prominent being Richard M. Esenberg of the Marquette University Law School and University of Wisconsin-Madison Law School Professor, Ann Althouse.

The case at hand, and there are three other legal challenges pending, is League of Women Voters of Wisconsin v. Walker (Case 11CV4669).

A permanent injunction was issued on March 12, 2012 by Judge Richard G. Niess, followed by a Court of Appeals opinion reversing Judge Niess' permanent injunction on May 30, 2013.

A petition was filed on June 28, 2013 for a hearing before Wisconsin Supreme Court. [Note: If you want to keep up with the four Wisconsin Voter ID cases, I recommend the Ohio State University Election Law at Moritz, an institution deserving of a MacArthur Fellowship genius grant for their work.]

Judge Neiss ruled that Wisconsin's photo ID law was unconstitutional "on its face," a heavy burden as noted by the appellate court reversing Neiss' ruling some 15 months later.

Neiss' opinion reads that the "right to vote belongs to all Wisconsin citizens who are qualified electors, not just the fortunate majority for whom [the photo ID law] poses little obstacle at the polls."

Wisconsin's Constitution, Article III, Section 1 reads: "Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district."

The Constitution is explicit is listing the types of laws that can be enacted excluding otherwise eligible voters in Section 2 (under Article III - Suffrage). These laws deal with residency, registration and felons and citizens judged incompetent.

As Niess notes: "2011 Wisconsin Act 23 [the Photo Voter ID law] ... provides that qualified electors under the Wisconsin Constitution may not vote in an election unless they also satisfy the additional requirement that they display acceptable government-sanctioned photo identification either at the polls or to election official by 4:00 p.m. on the Friday following the election."

Niess found that a constitutionally qualified, registered voter who on election day walks over to the polling table and is asked by an election inspector, in essence, "your papers, please," presents a new unconstitutional qualification to vote—a photo voter ID as prescribed by the Republican Party.

So, he found Wisconsin Act 23 unconstitutional on its face.

Presenting a photo ID is what Act 23 demands as a necessary condition in the plain language of Act 23.

Yet, incredibly the Wisconsin Court of Appeals District IV says although this is true and Act 23 does deprive a qualified elector of his right to vote at an election, the Act is not "so burdensome that it effectively denies potential voters their right to vote ... ."

The appellate court's ruling is narrow, and much of the opinion claims their conclusions rest on the briefs of the plaintiffs speaking to the view that a qualification is not really a qualification, but ask around:  The Wisconsin Court of Appeals District IV whiffed.

Writes Niess:

Article III is unambiguous, and means exactly what it says. It creates both necessary and sufficient requirements for qualified voters. Every United States citizen 18 years or older who resides in an election district in Wisconsin is a qualified elector in that district, unless excluded by duly enacted laws banning certain felons or adjudicated incompetents/partially incompetents.

The government may not disqualify an elector who possess those qualifications on the grounds that the voter does not satisfy additional statutory-created qualifications not contained in Article II such as a photo ID.

Althouse in a short column argues against Niess' reasoning:

To agree with the [Judge Niess], I think you need to see a person without an ID as a type of person who is being excluded from the right to vote [apart from the constitutionally permissible felons and those judged-incompetent in Article III, Section 2] ... There's just a step in the process that hasn't been completed. To say not presenting an ID is excluding you from the category of people permitted to vote seems like saying people who don't go to the polls when the polls are open are being excluded. It would be strange to say closing the polls at 8 is creating a new category of disqualified voters — those people who do not arrive before 8.

The Wisconsin Constitution does empower the legislature and governor to regulate elections. But the constitutional text is explicit and limited in Article III, Section 2, and enumerates five different categories empowering the legislature and governor to regulate elections.

Which of the five categories in Article III, Section 2 would Esenberg and Althouse contend photo voter ID falls?

Since when is what Althouse calls a "step" not a qualification when this step is either impossible or impractical for constitutionally qualified, registered voters to achieve?

Judge Niess on p. 3 of his opinion explains the primacy of the Wisconsin voter, and quotes a Wisconsin Supreme Court case, Dells v. Kennedy, 49 Wis 555, 6 N.W. 246, 246-247 (1880) (spelling in original), written by Chief Justice Orsamus Cole (1880-1892) [Wisconsin Supreme Court Justice (1855-1892)].

One wonders if Esenberg and Althouse will throw in the towel after a reading of Dells v. Kennedy. Perhaps the Wisconsin Court of Appeals District IV members may wish as well to take a read.

Chief Justice Orsamus Cole writes in part in Dells v. Kennedy (1880):

The elector possessing the qualifications prescribed by the constitution is invested with the constitutional right to vote at any election in this state. These qualifications are explicit, exclusive, and unqualified by any exceptions, provisos or conditions, and the constitution, either directly or by implication, confers no authority upon the legislature to change, impair, add to or abridge them in any respect. In the language of the chief justice, in Page v. Allen, p. 58 Pa. St. 346: "These are the constitutional qualifications necessary to be an elector. They are defined, fixed and enumerated in that instrument. In those who possess them is vested a high, and, to a freeman, sacred right, of which they cannot be divested by any but the power which established them, viz., the people, in their direct legislative capacity. This will not be disputed. For the orderly exercise of the right resulting from these qualifications it is admitted that the legislature must prescribe necessary regulations as to the places, mode and manner, and whatever else may be required to insure its full and free exercise. But this duty and right inherently imply that such regulations are to be subordinate to the enjoyment of the right, the exercise of which is regulated. The right must not be impaired by the regulation. It must be regulation purely, not destruction. If this were not an immutable principle, elements essential to the right itself might be invaded, frittered away, or entirely exscinded [cut out], under the name or pretence of regulation, and thus would the natural order of things be subverted by making the principle subordinate to the accessory. To state is to prove this position. As a corollary of this, no constitutional qualification of an elector can in the least be abridged, added to, or altered, by legislation or the pretence of legislation. Any such action would be necessarily absolutely void and of no effect."

No registry law can be sustained which prescribes qualifications of an elector additional to those named in the constitution, and a registry law can be sustained only, if at all, as providing a reasonable mode or method by which the constitutional qualifications of an elector may be ascertained and determined, or as regulating reasonably the exercise of the constitutional right to vote at an election. If the mode or method, or regulations, prescribed by law for such purpose, and to such end, deprive a fully qualified elector of his right to vote at an election, without his fault and against his will, and require of him what is impracticable or impossible, and make his right to vote depend upon a condition which he unable to perform, they are as destructive of his constitutional right, and make the law itself as void, as if it directly and arbitrarily disenfranchised him without any pretended cause or reason, or required of an elector qualifications additional to those named in the constitution. It would be attempting to do indirectly what no one would claim could be done directly.