Wisconsin Voter ID Challenge Hits GOP Law Targeting Who Can Vote

Update: See transcript of GOP-leaning Justice's comment and question: 'I'm troubled by having to pay the state to vote" and Don't "Destroy" the Right to Vote, Say Voting Rights Attorneys.
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As Scott Walker hides amid the release of emails showing Walker lied, cheated and effectively stole [from the people of Milwaukee County], a major Walker bill targeting citizens voting who Walker perceives to be voting the wrong way will be heard in open court.

Arguments on Wisconsin's Voter ID law are scheduled to be heard by the Supreme Court in the Madison state capitol at 9:45 A.M.; Tuesday, February 25.

WisconsinEye is tentatively scheduled to live stream the arguments on its website online, and on Charter Cable Channel 995 and Time Warner Channel 363.

Wisconsin's Voter ID law remains enjoined by Wisconsin state courts. The state cases to be heard are League of Women Voters of Wisconsin v. Walker and Milwaukee Branch of the NAACP v. Walker.

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.

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. Look for a 7-0 decision striking down the GOP-crafted law, Act 23.

As Judge Richard Niess wrote in his Decision and Order Granting Summary Declaratory Judgment and Permanent Injunction of Wisconsin Voter ID law on March 12, 2012:

"(A)s a matter of law under the Wisconsin Constitution, sacrificing a qualified elector's right to vote is not a reasonable exercise of the government's prerogative to regulate elections. ... Where does the Wisconsin Constitution say that the government, we, the people, created can simply cast aside the inherent suffrage right of any qualified elector on the wish and promise—even the guarantee—that doing so serves to prevent some unqualified individuals from voting?"

It doesn't. In fact, it unequivocally says the opposite. The right to vote belongs to all Wisconsin citizens who are qualified electors, not just the fortunate majority for whom Act 23 poses little obstacle at the polls."

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)... .