Don't "Destroy" the Right to Vote, Say Voting Rights Attorneys

Voting Rights Wars Still with Us, GOP Targets Voting

"'My concern is frankly trying to find a way that no one has to pay the state to vote if they don’t have what they need (to vote),' said Justice Roggensack, who often is noted as the leader of the conservative-leaning block of the court." (Heisig. Wisconsin Law Journal)

Updated - Oral Arguments on Wisconsin's Voter ID law today drew aggressive questioning that is typical of justices playing devil's advocate in elucidating the positions of the two sides, pro-voting v. anti-voting.

Make no mistake, Wisconsin Act 23, the Photo Voter ID law, is narrowly crafted to obstruct Wisconsin voters, aimed at sections of the electorate to aide a partisan outcome in favor of the Republicans, at the expense of constitutionally qualified, registered voters.

Such a partisan motive, however did not enter the discussion today, but was implied.

Some observations from viewing today's orals.

Attorney Lester Pines appearing for the League of Women Voters of Wisconsin v. Walker et al, argued that the authority of the state legislature to regulate elections does not include the power to draft legislation determining "who may vote," demanding a situation where constitutionally qualified, registered voters would walk to the polling table and in effect be asked "papers, please."

Pines called voting a "fundamental right," imperiled by Act 23, that was passed on a strict-party line vote within a half year after Scott Walker assumed office.

Richard Saks appearing for the Milwaukee Branch of the NAACP v. Walker et al took a similar position to Pines, noting that zero voter impersonation fraud cases have been prosecuted, while some 10 percent of Wisconsin citizens are estimated not to possess the GOP-crafted, narrow range of acceptable Photo voter IDs under Act 23.

Assistant Attorney General Clayton Patrick Kawski argued for the state of Wisconsin.

Kawski faced tough questioning from Justice Ann Walsh Bradley who said she found that if 10 percent of Wisconsin citizens could not legally vote because of Act 23, this is "breathtaking."

Bradley pummeled Kawski, asking if 10 percent were a "severe enough burden," and a "substantial enough burden" to render the law unconstitutional.

The Wisconsin Constitution in its plain text and as reflected in legal precedents holds a more powerful guarantee of the right to vote than the U.S. Constitution.

In the NAACP, the orals took a more federal direction in jurisprudence, with justices and attorneys citing federal precedents.

Justice Patience D. Roggensack took a strikingly skeptical tone against Clayton Patrick Kawski in referencing all the supporting documentation those without GOP-prescribed ID would have to acquire and spend, sounding incredulous in saying that paying money to the state was necessary to vote. "I'm troubled by having to pay the state to vote," she said. (Marley. MJS)

Justice Michael J. Gableman appeared to this viewer as a vote to uphold the voter ID law.

The Wisconsin Constitution bodes well for pro-voter forces against the Republican Party that has waged a years-long battle against voting, specifically targeting non-GOP demographics.

The pro-voting forces make this point in the Plaintiffs-Respondents-Petitioners' Reply Brief (filed 2/6/14), excerpted below.

Few believe even with a four-to-three GOP majority, the Wisconsin Supreme Court will eviscerate what is the foundation of Wisconsin democracy—the right to vote.

Attorney Pines amplified this argument made in the Plaintiffs-Respondents-Petitioners' Reply Brief:

I. THE VOTER ID LAW HAS THE EFFECT OF DETERMINING I. WHICH QUALIFIED ELECTORS MAY VOTE. THUS, IT IS NOT A LAW THAT  FALLS WITHIN THE LEGISLATURE’S PLENARY AUTHORITY TO ENACT REASONABLE ELECTION REGULATIONS.

A. Because The Legislature Has Limited Constitutional Authority to Regulate “Who” Votes, Defendants Want The Court To Believe That The Voter ID Law Only Regulates “How” Votes Are Cast.

Defendants do not attempt to rebut the League’s argument that the Legislature may not add a qualification to vote, and concede that if the Voter ID law does so, it is unconstitutional. They explicitly concede that the Voter ID law is neither a registration regulation nor a law to implement
the right of suffrage as allowed under Article III, sec. 2.  Brief of Defendants-Appellants (“Def. Br.”) p. 32

Much of the Defendants’ brief is devoted to a discussion of the uncontroverted proposition that the Legislature has plenary authority to enact reasonable election regulations about “when, where and how” elections are conducted. Defendants contend that the law regulates “how ballots are cast” and argue that the Voter ID law is a “reasonable” regulation, no different than a law dictating the form of the ballot or polling hours. Def. Br. pp. 7-16.

Defendants do this because the Wisconsin Supreme Court, for over 150 years, has enforced these basic principles:

• the Legislature has a limited plenary authority to regulate when, where and how elections are conducted but does not have the plenary authority to determine who may vote, and;  
• a regulation of when, where and how elections are conducted, if it also touches on who may vote, must not impair or destroy the right to vote.   

Undoubtedly, the Voter ID law determines who may vote. And, even if one were to accept the fanciful notion that the law merely regulates “how” votes are cast, the law is unconstitutional because it impairs the right of qualified electors to vote: 

[Election] regulations are to be subordinate to the enjoyment of the right [to vote],. . . . 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, under the name or pretense of regulation . . .  
Dells v. Kennedy, 49 Wis. 555, 6 N.W. 246, 247 (1880) (emphasis added by plaintiff's attorneys)... .