Feb 24, 2015

Voting Rights Advocates: "Unthinkable" DMV Clerks Decide Constitutionality of Voters

If Republicans and Scott Walker get their way, DMV clerks will make the decision on whether 10,000s of Wisconsin citizens get to vote, exercising the clerks' "discretion in a constitutionally sufficient manner." [Frank v. Walker, p.36]

Election law expert, Rick Hasen, says Wisconsin voting right activists make a persuasive case for the U.S. Supreme Court to hear the Wisconsin photo voter ID case, Ruthelle Frank v. Scott Walker and League of United Latin American Citizens (LULAC) of Wisconsin v. Barland.

Hasen notes the timing and disposition of the Wisconsin voting rights case facing the U.S. presidential elections next year, and the five-to-five split of the Court of Appeals for the Seventh Circuit pitting Judge Easterbrook's opinion with Judge Richard Posner's.

"This case comes to the Court with an extensive trial record, an exhaustive district court decision, and a pair of diametrically opposed Seventh Circuit opinions by Judges Easterbrook and Posner." [p.11 of Reply Brief]

If the Supreme Court does not grant cert, the GOP-passed bill signed into law by Scott Walker would become effective.

From Wisconsin voting rights activists' Reply Brief filed today:

...The district court identified other problems with the saving construction [by the Wisconsin Supreme Court]. A voter applying for photo ID “must still provide ‘[w]hatever documentation is available which states the person’s name and date of birth,’ and then the [DMV] administrator, in his or her discretion, may accept or reject ‘such extraordinary proof of name and date of birth.’” App. 197a (quoting Wis. Admin. Code § Trans. 102.15(3)(b), (c)). To guide DMV clerks, the Wisconsin Supreme Court offered “this cryptic instruction: ‘the administrator, or his or her designee, shall exercise his or her discretion in a constitutionally sufficient manner.’” Id. (quoting NAAC, 851 N.W.2d at 279). It is unthinkable that the right to vote could depend on the “constitutionally sufficient” exercise of discretion by a DMV clerk. See Louisiana v. United States, 380 U.S. 145, 153 (1965) (voting rights “cannot be obliterated by the use of laws ... which leave the voting fate of a citizen to the passing whim or impulse of an individual registrar”).  [p. 14]


  1. Interesting important issue. Why hasn't this been argued?

    1. After the Wisconsin Supreme Court contrived these rules to save the photo voter ID law, that's it for adjudication on the state level. This attempt to get the U.S. Supreme Court to grant cert includes this point among others.

      The question of why the four GOP justices on the Wisconsin Supreme Court felt compelled to save legislation is answered by the fact that Club for Growth and other rightwing GOP-affiliated interests own the Court. No one I talked to felt Act 23 had a chance with Wisconsin's affirmative Constitutional declaration of Suffrage.