No Voter ID Remains Law of Land; Pro-democracy Forces Get No Set-back from Narrow Ruling

Blacks voting in rural Alabama - They just won't quit, to the
chagrin and horror of Scott Walker and the Republican Party.
Today, Alabama Republicans says they salute
Scott Walker's Alabama Values.

No cause for alarm for pro-democracy forces in the Wisconsin voter ID appellate court's narrowly tailored decision. This GOP voter obstruction effort remains unconstitutional, pending the big show-down at the Wisconsin Supreme Court.

The Wisconsin 4th District Court of Appeals in Madison issued a unanimous decision finding the League of Women Voters of Wisconsin's challenge to the Republican voter ID law, Wisconsin Act 23,  is not unconstitutional on its face, as had been ruled in 2012 by a circuit judge.

The League's challenge is a heavy legal assault against the statute—a "facial challenge" in which the state statute as written on its face is asserted to be unconstitutional, opposed to how the statute would be applied in practice.

"In sum, the League has presented no basis to conclude that it has met its heavy burden in this facial constitutional challenge," reads the appellate decision in part. This appellate decision does not affect another circuit court injunction preventing the voter ID act from taking effect. Two other federal legal challenges have been filed against the Wisconsin voter ID act as well.

In federal court, the landmark case, Crawford et al. v. Marion County (Indiana) Election Board et al. (no. 07–21, 2008), is regarded as controlling other voter ID cases wherein federal challenges have been made to other state Republican laws seen as unconstitutional under the U.S. Constitution.

This is significant because the plaintiffs in Crawford challenged a Indiana law (similar to Wisconsin's) as unconstitutional on its face under the weak United State Constitution, which has no affirmative right to vote for American citizens in its text, as opposed to the Wisconsin Constitution.

Wisconsin is better for voters because of the Wisconsin Constitution. A facial challenge to GOP voter obstruction statutes may fail in federal court, but ought not to fail in Wisconsin courts.

As for the merits of the appellate decision, consider a voter who is:

• constitutionally qualified to vote
• registered to vote
• has been voting for years

Under the 2011 GOP's voter ID law, a registered, constitutionally qualified voter goes the polls to vote, vested with this franchise to vote, walks to the polling table as she or he has for years, but under the GOP's voter ID law (were it not legally prevented from taking effect under Judge David Flanagan's order) is now stopped from voting by the GOP's new statutory condition to cast a vote, if she or he does not possess the GOP-prescribed, new voter ID.

Former U.S. Supreme Court Justice Sandra Day O'Connor (1981-2006) warned recently against politicians in judicial robes issuing partisan decisions solely to benefit secret interests, subverting the rule of law.

Justice O'Conner may with equal justice have also warned against the obtuse, uncomprehending Wisconsin appellate Justices Lundsten, Higginbotham, and Blanchard who evidently do not relate the text of Act 23 to the 100,000s of Wisconsin citizens like 85-year-old Ruthell Frank who would report to the polls as she has for over 60 years in Brokaw, Wisconsin and now be told she is not qualified to vote under Act 23, because she does not have the additional qualification of a driver's license or other GOP-prescribed ID.

Why the three appellate justices fail to comprehend that Act 23 is not on it face "sufficiently narrow to avoid needless and significant impairment of the right to vote," as Judge David Flanagan writes in striking down the statute in a different case on Act 23, is mystifying to those who regard the Wisconsin Constitution as a strong protector of the sovereign people of Wisconsin [as noted in Wis. Const, art III, section 1] Wood v. Baker, 38 Wis. 71: (August 1875)] Wisc. - Wisconsin Supreme Court.

Even the Wisconsin Republican Party's corrupt Attorney General J.B. Van Hollen (Republican) who begged that the voter ID bill be reinstated before the 2012 presidential election has admitted the voter ID act will obstruct voters, warning in March 2012 that "those relying on the injunction (stopping the Voter ID Act from taking effect) may be left without an opportunity to obtain their IDs by the date of the election."

As noted here, the GOP and Van Hollen make a habit of trying to obstruct Wisconsin voters.

In 2008, Van Hollen after secretly consulting with the GOP proposed an exact match of voters' names in bureacracies' databases is a new condition to voting, a ridiculous argument that was tossed out of court never to see the light of court again after the 2008 presidential election.

Jurists contacted over the course of the years since 2011 have agreed with statements made on background, "I don't think they [the four Republican justices] will vote to uphold the [voter ID] law. It would be too blatant a partisan display."

I am not as sure as I was a year ago that I agree with this statement.

GOP's New Voter Suppression Effort—Negation of Wisconsin's Expansive Right to Vote

Update: The 4th District Court of Appeals in Madison just issued a narrow ruling overturning Dane County Circuit Judge Richard Niess' order finding the voter ID law unconstitutional on its face in 2012. No jurist contacted expected this unanimous three-judge ruling.

In a separate case, Judge David Flanagan had permanently and immediately halted enforcement and implementation of the Republicans' voter ID-obstruction act in Milwaukee Branch of the NAACP et al v. Walker (Case 11CV5492) after a trial in 2012.

The Voter ID law remains halted from taking effect, and in the League of Women Voters of Wisconsin v. Walker (Case 11CV4669) ruling just struck down may result in the voting rights groups waiting to see how the two federal court cases challenging the voter obstruction law are settled.

Voter IDs are unconstitutional under the Wisconsin Constitution, so the new GOP voter ID initiative mandates two new, extra-constitutional requirements for citizens to vote

What if we lived in a democracy where the right to vote is guaranteed in the Constitution?

The state of Wisconsin is such a democracy; the United States of America, not so much.

Hence, the emergence of Democratic Party efforts to amend the U.S. Constitution to guarantee the right to vote affirmatively and categorically, as the Wisconsin Constitution does.

The effort is led by Rep. Mark Pocan (D-Madison) and Rep. Keith Ellison (D-MN).

But protecting the vote has met a cold reception from Wisconsin and national Republicans.

No Republican in Congress to this point has joined in the effort to protect voting, and in the states, Republican aversion to voting is worse.

Why would that be?

One obvious answer is that Republicans are busy obstructing the vote, an objective running counter to the effort to protect the vote.

The current project by Wisconsin Republicans resumes their party's attack on the wrong kind of people voting.

The GOP has made the correct assessment that the corporate press will play stenographer and uncritically run GOP lies on alleged voter fraud and voter IDs in support of the GOP effort to obstruct the vote.

Thus there are little immediate political consequences, beyond further aggravating college students, minorities, working class families, and civil libertarians (aka liberals) who have historically voted for Democrats. This is exactly the reason why the GOP wants to repress them from voting.

But the Wisconsin Constitution remains, specifically Article III, Section 1: "Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district."

Facing this Wisconsin Constitution, Republicans are desperately trying to get around the fact that Republicans can produce ZERO voter fraud prosecutions of "voter fraud violation(s) that would have been prevented by the voter ID requirements of Act 23, (the GOP's voter ID law)," as Judge David Flanagan ruled in his permanent injunction order issued of July 17, 2012.

This reality extends across the nation, but has not permeated the political consciousness of the body politic, so the GOP will simply emit comments that voter IDs are "common sense," with the assurance that the press will not call them on this nonsense.

But voter IDs are unconstitutional under the Wisconsin Constitution, so (as been noted) the new voter ID initiative mandates two new, extra-constitutional requirements for citizens to vote: A voter's vocal oath administered only by the Chief Election Inspector, and then a voter's signing of an additional written statement explaining why he or she does not have an ID.

This alternative is intended to present a convoluted path to vote so that registered, constitutionally qualified voters can vote so long as they do not mind this per se harassment and humiliation, an elevated public scrutiny of voters' qualifications as Wisconsin citizens, intended to input confusion, frustration, and ultimately disenfranchisement into the voting process.

This is an undue burden on some registered, constitutionally qualified voters, and after the Republicans ram this new voter obstruction bill into law, it ought to be struck down as unconstitutional, and not some harmless exercise in regulating elections. It will be, while the legislature ignores other much-needed policy discussion and enactment.

As Dane County Circuit Judge Richard Niess wrote in striking down the GOP's voter ID law as unconstitutional on its face in March  2012:

Our Constitution is a line in the sand drawn by the sovereign authority in this state - the people of Wisconsin - that the legislature, governor and the courts may not cross ... (.) Where does the Wisconsin Constitution say that the government we, the people, created can simply cast aside the inherent rights 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 [the voter ID law] poses little obstacle at the polls.

This new GOP obstacle -- mandated harassment and public scrutiny of some voters -- crosses the constitutional line in the sand to further the GOP's partisan objectives.   Perhaps, a trial will need to be held on this new law after it is passed and signed, to show the damage the law would do.  

Meanwhile, the GOP will call trashing the Wisconsin Constitution "common sense," but crafting new ways to get around the sovereign authority in this state -- the people of Wisconsin -- is unwise, unjust and unconstitutional. It also is not what the people of Wisconsin sent these legislators to Madison to do -- it is frivolous and wasting time when there are -- or should be -- urgent items on the agenda.

DOJ Files Anti-Gay Marriage Brief

The Wisconsin Dept of Justice (DOJ) filed its response brief yesterday to a constitutional challenge to Wisconsin’s same-sex marriage ban approved in a 2006 statewide referendum composed of two questions being considered by the Wisconsin Supreme Court in a legal challenge posed by civil rights advocates.

The case, William C. McConkey v. J. B. Van Hollen, challenges the anti-gay marriage referendum on several constitutional grounds, arguing that the state’s resulting constitutional amendment should be overturned.

Constitutional Amendment Referendum

The language of the 2006 referendum reads:

Shall section 13 of article XIII of the constitution be created to provide that only a marriage between one man and one woman shall be valid or recognized as a marriage in this state and that a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state? [Emphasis added]

Single Purpose

One of the issues addressed in the case is the constitutionality of the referendum formulation that poses more than one proposition in a single ballot question that confuses Wisconsin voters.

The related question of how to determine whether such compound-question referenda serve the same general purpose and comprise the same subject matter in accordance with some case law, will also be considered by the Court.

The DOJ argues that the "general purpose of the amendment was to preserve and protect the unique and historical status of traditional marriage as a union between one man and one woman,” echoing the ruling of Dane County Circuit Judge Richard Niess, who upheld the amendment last year, saying in part that the two propositions in the referendum are “two sides of the same coin.”

So how does the Court go about determining if two propositions serve the same general purpose?

McConkey argues and the Court of Appeals April 2009 decision agrees vis a vis Judge Niess, that the “proper legal standard and methodology” for determining a general purpose is unclear from existing case law.

The DOJ brief argues that existing case law accords deference to the legislature’s formulation of referendum questions on proposed constitutional amendments.

Both the DOJ and McConkey briefs suggest judicial standards of ascertaining legislative intent of referendum questions.

Single Subject

The compound formulation of a question promotes ambiguity rendering the electorate’s ballot preference unknown because voters are only able to get to cast one yes or no to the two different questions in clear violation of the " ? Article XII, section 1 of the Wisconsin Constitution.

The DOJ does not see it that way.

Reads the DOJ brief:

The two parts of the ballot question presented to voters in November 2006 related to and furthered the general purpose of the amendment: to preserve and protect the unique and historical status of traditional marriage as a union of one man and one woman. McConkey’s strained effort to conceptually dissociate the two propositions should be rejected.

One wonders how the same general purpose of two parts of the ballot question can be served [voted upon] and ascertained, when a voter might easily be in favor of the first question but not the second question of the referendum.

The strained effort in this matter is imputing a unitary coherence onto the religious right's compound formulation. Whatever the GOP and the religious right were thinking, they did not communicate their propositions clearly to Wisconsin voters.

See also:

- Objection, Compound Referendum
- Brief Looks to Doom Wisconsin Gay Marriage Ban

Brief Looks to Doom Wisconsin Gay Marriage Ban

Update: McConkey brief is now available online.

Wisconsin's gay marriage ban resolutions were shepherded through the 2003-05 legislative sessions with exclusive Republican support.

But the gay marriage referendum was written so broadly and ambiguously that the resulting constitutional amendment will likely be struck down in the William C. McConkey v. J. B. Van Hollen (Appeal Number 2008AP001868) Wisconsin Supreme court case.

Reading the McConkey brief filed yesterday is like a breath of fresh air; nothing quite like rigorous logic defeating cynical bigotry.

One big problem with the 2006 referendum is that its formulation is a compound question that asks for one response to two different propositions in the same referendum question.

This compound formulation promotes ambiguity rendering the electorate’s ballot preference unknown because voters were only able to get to cast one yes or no to the two different questions in clear violation of the "single-subject" rule set forth in Article XII, section 1 of the Wisconsin Constitution.

Divining a Purpose

Dane County Circuit Judge Richard Niess, who upheld the amendment last year, saying the two clauses in the referendum question were ‘two sides of the same coin’ and properly decided with one vote will likely regret his ill-informed decision that invented a legislative purpose for the two propositons.

Judge Niess said that the legislative purpose of the amendment is the “preservation and protection of the unique and historical status of traditional marriage,” a foolish (and astoundingly ignorant) statement in the face of the dynamic, evolving history of marriage and a purpose he imputes to the legislature with no evidence.

Reads the McConkey brief on this point:

Were the Court to base its determination of a proposed amendment’s purpose on something other than the one found in the Enrolled Joint Resolutions, for instance, by determining purpose from statements made by those participating in the public debate surrounding the amendment, it would be deviating from the determination of purpose already made by the Legislature and legislating from the bench. That is what the circuit court did, when it found that the purpose of the amendment was 'the preservation and protection of the unique and historical status of traditional marriage.' (R. 1, A-App. 7), 2003 J.R. 29 and 2005 J.R. 30 say nothing about preservation, protection, uniqueness, traditional marriage or historical status. [Emphasis added]

Judge Niess can't just make stuff up; he's a judge.

Single Subject

Reads the McConkey brief filed yesterday on the compound question, single subject issue:

The circuit court concluded that the two propositions were ‘two sides of the same coin.’ That is incorrect. Had the second portion of the ballot question merely proposed that ‘marriage between any other individuals shall not be allowed, recognized or valid in this state,’ the circuit court’s observation would be true. But the second proposition was not so limited. It was not the obverse [logical counterpart] of the first.

Rather, the first proposition stated whose marriages would be recognized as valid by the state, and the second proposition limited the legislature’s power to provide to unmarried people a status that is ‘identical or substantially similar’ to marriage. That is a far different purpose than the first.

The Legislature erred by trying to accomplish two separate and distinct things through one ballot question. By having those two distinct purposes, the ballot question violated the single general purpose prong of the single amendment requirement set out in Article XII, Section 1 of the Wisconsin Constitution. Having done so, Article XIII, Section 13 is unconstitutional.

The Attorney General’s reply brief is due on August 13th.