Oct 13, 2013

Wisconsin Challenge to GOP's Photo Voter ID May Be Landmark

Update: Related piece in Post (Wilson) about Voting Wars in Wisconsin
Supreme Court Justice John Paul Stevens announced the judgement of the Court in a landmark voting rights case in 2008, delivering an opinion upholding the constitutionality of state-mandated photo voter IDs as a precondition to vote under the United States Constitution.

The Republican Party was happy.

Crawford v. Marion County (Board) Election Board et al legitimized the GOP project to obstruct the vote of non-GOP-voting Americans, a project that went into crash mode as demographic trends signaled electoral trouble for the American White Party. 

Three developments signal an eventual  reversal of Crawford in cases challenging Wisconsin's Photo Voter ID law, slated for trial on November 4—Frank v. Walker, (Case 11cv1128), and Jones et al v. Deininger et al (Case 2:12-cv-00185) (U.S. District Court for the Eastern District of Wisconsin), and likely to reach the U.S. Supreme Court.

Justice John Paul Stevens Succeeded by Justice Elena Kagan

Firstly, Justice John Paul Stevens (1975-2010), the author of the Crawford opinion, has been replaced by Justice Elena Kagan (2010-present), who is by all accounts sympathetic to civil rights against state obstruction.

That's one vote to overrule Crawford.

Justices Ruth Bader Ginsburg and Stephen G. Breyer each dissented from the Court's opinion in Crawford.

That's three votes.

Justice David Souter, who also dissented in Crawford, has been succeeded by Justice Sonia Sotomayor, who is sympathetic to civil rights against state obstruction.

That's four likely votes to overrule, and depending on this Court's custom sufficient to grant cert.

This leaves five remaining votes on the Court that ruled on Crawford:

Chief Justice John G. Roberts, Jr. and Anthony M. Kennedy who joined Stevens' opinion; and Justices Antonin Scalia, Clarence Thomas, and Samuel Anthony Alito who joined Scalia's concurring opinion.

Reads Scalia's opinion:

To evaluate a law respecting the right to vote—whether it governs voter qualifications, candidate selection, or the voting process—we use the approach set out in Burdick v. Takushi, 504 U. S. 428 (1992) . This calls for application of a deferential "important regulatory interests" standard for nonsevere, nondiscriminatory restrictions, reserving strict scrutiny for laws that severely restrict the right to vote. 
Use of Voter ID Laws to Severely Restrict and Discriminate Against Discrete Classes of Voters

Secondly, consider "nonsevere, nondiscriminatory restrictions." 

If one intellectually honest jurist of the Roberts, Scalia, Kennedy, Thomas, and Alito majority takes a look at the record accumulated in Frank v. Walker and Jones et al v. Deininger when these cases are petitioned to be heard before the Supreme Court, it will be clear, it will be striking, that severe, discriminatory restrictions are inherent and intended in GOP-written state photo voter ID laws.

Five years since Crawford have changed the minds of many jurists.

As Souter wrote, joined by Ginsburg:

The statute is unconstitutional under the balancing standard of Burdick v. Takushi, 504 U. S. 428 (1992) : a State may not burden the right to vote merely by invoking abstract interests, be they legitimate, see ante, at 7–13, or even compelling, but must make a particular, factual showing that threats to its interests outweigh the particular impediments it has imposed. The State has made no such justification here, and as to some aspects of its law, it has hardly even tried
Five years have yielded an abundant factual record showing voting impediments and barriers, and virtually no showing of voter impersonation fraud out of 100s of millions of votes cast. And that's without Wisconsin's trial not yet begun.

Judge Richard A. Posner Recants His Crawford Opinion

Finally, the author of Crawford in the U.S. Court of Appeals for the Seventh Circuit which will hear the likely appeal of Frank and Jones, Judge Richard A. Posner (1981-present), has publicly recanted his Crawford opinion he authored, saying, "We judges and lawyers, we don’t know enough about the subject matters that we regulate, right? And that if the lawyers had provided us with a lot of information about the abuse of voter identification laws, this case [Crawford] would have been decided differently"

Can states eliminate the right of suffrage for discrete, otherwise constitutionally qualified voters?

The intent and effect of the flurry of GOP voter ID laws, and Wisconsin's law in particular, suggest their anti-voting project is unconstitutional as it erects discriminatory barriers that violate Section Two of the Voting Rights Act and the 14th and 15th Amendments to the U.S. Constitution.

As John Schwartz writes in the New York Times: "Richard L. Hasen, a law professor at the University of California, Irvine, and an expert on election law, said an admission of error by a judge is unusual, and 'gives to Democrats an ‘I-told-you-so’' argument on voter identification issues.
More significant, he said, it reflects what he called a recent shift. Previously, cases were decided largely along party lines, but then 'you started seeing both Democratic- and Republican-leaning judges' reining in voter identification requirements"

If say in 2014-15, the U.S. Supreme Court agrees to hear Frank and Jones, Scott Walker and Wisconsin Republicans will have made history just not in the way they intended.

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