Nov 13, 2013

Wisconsin Voting Rights Trial to Be Followed by State Appellate Hearing

Wisconsin Court of Appeals, District II
Coming soon for Wisconsin Voter ID Law
The federal trial on the constitutionality of Wisconsin's Photo Voter ID law will be quickly followed by a state hearing before a Wisconsin appellate court panel challenging the permanent injunction order issued in July 2012 by Judge David T. Flanagan in Milwaukee Branch of the NAACP v. Walker on the same Photo Voter ID law, Act 23.

Wisconsin's voter photo ID law will be under adjudication in state and federal court simultaneously, with asserted violations of the federal and Wisconsin Constitutions.

Wisconsin's (the defendants in the trial) primary expert witness, M.V. Hood III of the University of Georgia, testified yesterday in what an informed observer characterized as not a very compelling rebuttal to the plaintiffs' social scientific experts' testimony last week.

Hood's testimony and the cross-examination by the voting rights plaintiffs are described as mostly inside social scientific baseball by one observer.

Michael Sandvick, the ex-Milwaukee, racist cop, is expected to testify Thursday or Friday for the defendants, though the thrust of Sandvick's expected testimony, the 2008 report on alleged voter fraud has been disavowed and discredited.

The trial, composed of two cases, is slated to end on Friday.

Milwaukee Branch of the NAACP v. Walker - permanent injunction order issued on July 17, 2012 by Judge David T. Flanagan

The Wisconsin Court of Appeals, District II will hear the NAACP case on December 17, 2013 before a three-judge panel, the composition of which is not yet public.

District II is dominated by heavily Republican Ozaukee, Washington, Waukesha and Fond du Lac counties, and two of the judges appear to be under the sway of the Koch brothers.

Two of the four judges in District II, Paul F. Reilly and Mark D. Gundrum, are self-identified Republican partisans.

Judge Gundrum is a former state representative (R-New Berlin, 1999-2010) and was appointed by Scott Walker in 2011. Gundrum was elected in April 2012 to a six-year term.

As noted by Badger Democracy Judge Reilly may be more ideological than Gundrum:

Reilly is a known Republican. In the 2010 election, Reilly received the endorsement of the heavily Republican-conservative Wisconsin Family Action PAC, applauding his bringing "...respect for the law and the separation of powers to this key judicial position." The twisting of "separation of powers" meaning was key to conservatives in defending the overreach of Act 10 enactment, and their legal opining that courts could not intervene - even in light of constitutional challenges. According to Judicial Education Commission staff, Reilly "pushed hard" for Henry Butler's seminar on Law and Economics to be included in the 2009 program. A non-partisan judge, lobbying for a seminar created, and paid by Koch Industries in 1995, focusing on Friedman principles of "free-market economics." Butler moves from one university to the other with private funding. In 2009, the program was at Northwestern University. Now, the Law and Economics program resides at George Mason University - but always under the direction of Henry Butler.

Henry Butler is a known conservative and free market proponent-economist. Butler had a long affiliation with the American Enterprise Institute, having been the former director of the "Judicial Education Program." In 1992, Butler left George Mason University to accept the "Koch Distinguished Professor of Law and Economics" at the University of Kansas - funded entirely by a generous grant from the Koch Foundation. While at the U of K, Butler developed his course, with money, support, and influence on policy from the Kochs. In its formative stages, U of K received over $2 million dollars in private endowments from the Koch Foundation for the "Judicial Education" Institute (pgs. 18-20 of the document).

A report by Bruce Green prepared for the Koch Foundation in 2004 (pgs. 18-28 of the document) discloses that Butler, with Koch support and money, began developing, publicizing, and teaching a course with the intent of influencing state judicial opinion - with the express goal of gaining "free-market" supporting decisions at the all-important state level. Bruce A. Green at that time was the Stein Professor of Law at Fordham University School of Law and the director of the Louis Stein Center of Law and Ethics. The original study conducted by Green, upon which this report was based, was based on the following report: Bruce A. Green, Ethics of Judicial Education: An Analysis of Private Charitable Gifts for Judicial Learning (Oct. 15, 1999). The report was prepared for three foundations-the Charles G. Koch Foundation, the Claude R. Lambe Foundation, and the Fred and Mary Koch Foundation, which retained the author to render, on a compensated basis, a report on the propriety of private foundation support for judicial education programs. ...

Henry Butler, heading the Law and Economics program now at George Mason, keeps the espoused principles grounded firmly in the conservative principles of an unrestrained, free market capitalism – without regulation getting in the way. The reading list for the program is indicative of that bias – many of the readings are required reading for the American Enterprise Institute. The video introduction of the program gives a synopsis of the mission – train judges to rule in favor of  in matters of particular interest to big business, monopolies, trusts – the Kochs of the world. ...

As an academic, he certainly has the ability to move in the right corporate/wealth sectors, and he belongs to the organizations which are able to attract money from those who wallow in it. He has received grants/fellowships from the Koch, Olin, Coor and Scaife-funded organisations, and he currently serves on the:
  • Legal Advisory Council of the American Enterprise Institute’s Legal Center for the Public Interest, 
  • Advisory Council of Atlantic Legal Foundation, 
  • Legal Policy Advisory Board of the Washington Legal Foundation
Indeed, Butler ran as a Republican for Congress (Virginia) in 1992, and lost – despite a $1000 contribution from David Koch. Quietly, Koch political dominance has emerged over the past decade. According to the Wisconsin Judicial Education staffer, Judge Reilly had seen Butler deliver his program in Chicago – likely true, as Butler was at Northwestern at the time. Being a lifetime conservative ideologue, Reilly would have known the premise of the “Law and Economics” program, as well as Butler’s reputation and connections with Koch Industries. If Reilly was on a scouting mission to vet the program for presentation in Wisconsin, it is merely conjecture – Reilly three times refused comment on the subject, in requests for interviews.

When one considers the role ideologically conservative judges have played in the power grab in Wisconsin this past year – especially those in and influenced by Waukesha County politics; the genius and deviousness of the Koch plan is apparent. The influence of Henry Butler and Koch ideology on some justices cannot be overstated – and will continue for years to come, until this program is rejected by academia and universities as unilaterally political propaganda – not legal study, and Judges like Reilly are exposed for the political ideologues they are – not members of a non-partisan judiciary. Next time a Republican screams judicial partisanship about a “radical” Dane County Judge, ask them about Henry Butler and Koch Industries, and Paul Reilly.
Dane County Judge Flanagan found as fact after a 2012 trial that over 300,000 Wisconsin citizens lack GOP-mandated IDs necessary as a condition to vote under Act 23.

Scott Walker, the GOP Wisconsin Attorney General and Wisconsin Republicans argue that obtaining the approved type of photo ID is not an undue burden. The Koch brothers agree.

In the case, Milwaukee Branch of the NAACP v. Walker, Judge Flanagan's order and opinion reads in part:

Conclusions of Law – Constitutionality of the Photo ID requirements of Act 23

This matter is being decided based upon Article III, Section 1 of the Wisconsin Constitution. This court need not and does not reach the claims asserting denial of substantive due process and equal protection in violation of Article I, Section 1 of the Wisconsin Constitution. The court hereby adopts the following conclusions of law
The cost and the difficulty of obtaining documents necessary to apply for a DMV Photo ID is a significant burden upon the opportunity of Wisconsin citizens to vote.
The Photo ID requirements of Act 23 impose a substantial burden upon a significant proportion of the Wisconsin citizens who are already registered to vote.
The Photo ID requirements of Act 23 impose a substantial burden upon a significant proportion of the Wisconsin citizens who are not yet registered to vote but who are legally eligible to register.
The cost and the difficulty of obtaining documents necessary to apply for a DMV Photo ID is a substantial burden which falls most heavily upon low income individuals.
The Photo ID requirements of Act 23 are entitled to a presumption of constitutionality.
The Photo ID requirements of Act 23 include no back-up mechanism to examine or to verify the qualification of an eligible Wisconsin voter who, through indigency or other sufficient cause, appears to vote at an election without the required Photo ID
The Photo ID requirements of Act 23 are unlikely to protect the electoral process.
The Photo ID requirements of Act 23 are not narrowly tailored to achieve a goal of voter
The Photo ID requirements of Act 23 constitute a substantial impairment of the right to vote guaranteed by Article III, Section 1 of the Wisconsin Constitution
The Photo ID requirements of Act 23 are inconsistent with, and in violation of Article III, Section 1 of the Wisconsin Constitution.

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