Showing posts with label Clayton Patrick Kawski. Show all posts
Showing posts with label Clayton Patrick Kawski. Show all posts

Feb 25, 2014

GOP-leaning Justice: 'I'm troubled by having to pay the state to vote"

Justice Patience  Roggensack
In the oral arguments in the Milwaukee Branch of the NAACP v. Walker et al (one of two cases heard today in the Wisconsin Supreme Court) challenging Wisconsin's Photo Voter ID law, Act 23), Justice Patience D. Roggensack took a skeptical tone against Assistant Attorney General Clayton Patrick Kawski in referencing the documentation those without GOP-prescribed ID would have to acquire and the money they would have to spend.

Roggensack appeared incredulous in stating that paying money to the state is necessary to vote.

Here is a transcription of the comment and question made to Assistant Attorney General Kawski defending Act 23 in court:
My concern is that for someone who doesn't have a birth certificate, there has to be a payment made to get that birth certificate [to get a license or acceptable ID and then be qualified to vote].

Now, it may not apply to me, I already have a driver's license. But anybody that doesn't have a birth certificate, it appears from the statute [Act 23] that there's a requirement that they make a payment, and the payment goes to the state.

And what bothers me is that this feels—although not universally as was the case in Harper (Harper v. Virginia Board of Elections (1966)) where there was $1.50 poll tax—it's still a payment to the state to be able to vote. That bothers me. Can you address that? ... I'm troubled by having to pay the state to vote.
The two cases heard are League of Women Voters of Wisconsin v. Walker et al and Milwaukee Branch of the NAACP v. Walker et al.

Two cases challenging Act 23 are being deliberated in federal court as well, and plaintiffs are seeking an injunction in those cases: Frank v. Walker, (Case 11cv1128) and League of United Latin American Citizens of Wisconsin v. Deininger (Case 2:12-cv-00185).

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)... .