Early Voting Begins in Wisconsin

Madison, Wisconsin —  The Meadowridge Library early-voting site on Madison's southwest side saw the first trickle of voters casting their ballots late this morning.

It's a sight sure to annoy Republicans here as much of the early-voting electorate held in disfavor — non-Republicans and minorities — look likely to their cast votes at variance to what the the GOP regards as proper.

Judge Frank Easterbrook, the Republicans' go-to judge on the U.S Court of Appeals for the Seventh Circuit, penned a bizarre opinion in this appellate circuit now overrun with Republican-nominated judges.

Easterbrook writes that statutory discrimination against minorities is not discriminatory if discrete demographics vote in similar political fashion and reside prominently in urban jurisdictions, Luft v Evers; One Wisconsin Institute, Inc. v Jacobs, (Nos. 16-3003, 16-3052), (Marley, Milwaukee Journal-Sentinel). 

The opinion, in part, reinstates Republican-enacted restrictions on early, in-person voting. So, early voting began today, instead of late Sept. 

No matter, the massive pro-voting campaign by private and public interests blunts any depressive effect on turn-out here, as envisioned by Easterbrook.

We've issued 106,564 absentees, of which 82,309 are returned to be counted, including 4,542 cast at our in-person absentee sites, and 2,865 returned via drop box. We have 189,244 registered voters, including 29,524 who've registered since the Aug. Primary. #MadisonVotes2020

— Madison WI Clerk (@MadisonWIClerk) October 22, 2020

The nonpartisan counteroffensive against Republicans is joined by election clerks in metro voting districts notes In These Times, pointing to public-private partnerships that have emerged in reaction against the Republican Party, (WISC-TV).

This pro-voting phenomenon is a consequence of the most comprehensive and outrageous attack on voting rights in some 50 years by the Republicans.

In-person absentee voting continues today!

Find a location & time that works for you. Options available thru Nov 1: https://t.co/G7sxxnYQ62.#MadisonVotes2020 #vote #elections2020 pic.twitter.com/6ipEsGqgQ8

— Madison WI Clerk (@MadisonWIClerk) October 21, 2020

Pandemic-Caused Mail-in Ballot Push Reduces Effect of Frank Easterbrook Opinion Against Voting Rights

Madison, Wisconsin — Wisconsin pro-voting advocates are urging citizens to act now in an effort to help voters cast their votes and have their votes counted.

Public and private initiatives protecting this foundational right come as anti-voting forces aligned with the Republican Party use the COVID 19 crisis, litigation and sabotage of the U.S. Post Office to decrease voter turnout.

Prior to the Coronavius COVID 19 pandemic, Wisconsin voting rights workers noted with concern a then-pending voting rights case, decided in June 2020, Luft v Evers; One Wisconsin Institute, Inc. v Jacobs, (Nos. 16-3003, 16-3052).

Judge Frank Easterbrook, the anti-voting forces' go-to judge on the U.S Court of Appeals for the Seventh Circuit, penned a bizarre opinion in this appellate circuit now overrun with Republican-appointed judges thanks to Senate Democrats' and Pres Obama's political incompetence.

Easterbrook writes that statutory discrimination against minorities is not discriminatory if discrete demographics vote in a similar political fashion and reside prominently in urban jurisdictions, Luft v Evers; One Wisconsin Institute, Inc. v Jacobs, (Nos. 16-3003, 16-3052), (Marley, Milwaukee Journal-Sentinel). 

So, Easterbrook reasons, the Voting Rights Act and the First Amendment lose force if people who can be measured by the same ethnicity, also vote in an identical political fashion as targeted by statute.

Easterbrook reinstated Republican-enacted restrictions against early voting.

But the pandemic makes in-person, early voting a risky proposition.

Now, a massive, pandemic-induced absentee-ballot effort seeking to overcome other Republican anti-voting efforts likely will blunt the effect of anti-early-voting efforts like Luft by promoting early, mail-in ballots.

This pandemic, second-order effect on voting rights thus can be seen in isolation this election cycle as a happy accident following Luft v Evers; One Wisconsin Institute, Inc. v Jacobs.

Though Luft v Evers; One Wisconsin Institute, Inc. v Jacobs reinstated Republican-enacted restrictions on early, in-person voting, the decision is likely to have less importance now that a massive push for mail-in absentee voting has been launched after the pandemic hit.

The nonpartisan counteroffensive against Republicans is joined by election clerks in metro voting districts notes In These Times, pointing to public-private partnerships that have emerged in reaction against the Republican Party, (WISC-TV).

Justices on 7th Circuit Do Duty for Racist GOP — Slash Voting

Wisconsin voting rights workers worked to defend citizenss against
Republican-enacted voter obstruction laws. Molly McGrath (L), a
voting rights attorney with the ACLU, works with Madison residents
to get the IDs they need to vote under Wisconsin’s restrictive
voter-ID law. (Courtesy of Molly McGrath)

Madison, Wisconsin —You should have seen Wisconsin voters streaming into metro voting precincts after a voting rights victory in the Summer 2016, (One Wisconsin Institute v. Jacobs, [Thomsen] (16-3091).

With black hair and dark skin, voters sometimes teamed-up with white women just to stick it in good folks' collective face; and ole-time Wisconsin values looked frayed as Gov Scott Walker (R) was knocked out of office in 2018.

Used to be, you only had to deal with black folks at Bucks games and visits to the Milwaukee Zoo. Now, you can find black folks in Fond du Lac marching down the street like they own the place.

God-fearing racists need not have worried.

Judge Frank Easterbrook is the racists' ace in the hole, though Easterbrook, and his propensity to play with loose with facts, proved an unpunctual card to play in Luft v Evers; One Wisconsin Institute, Inc. v Jacobs, (Nos. 16-3003, 16-3052), voting rights cases decided June 29, 2020, (Marley, Milwaukee Journal-Sentinel).

Easterbrook's job, as he sees it, is to diminish voting rights, and devise new ways for Republican legislators to stop minorities to vote.

Reports Rick Hasen, election law expert, on Easterbrook's I-see-no-racism-here June 2020 opinion from the Seventh Circuit: [Hasen's analysis should result in a code-red response, as 2020 will be the most comprehensive voter-obstruction project since the Civil War].

[W]ith no explanation for the 3-year delay ... overall this is a very voter-unfriendly decision (and I say that not necessarily because of the holdings but because of the dismissiveness of the panel’s approach to voting rights issues and what it means for future challenges).

Some details:

This appeal is complicated: it comes from two separate cases where various election laws were challenged as unconstitutional, a violation of the Voting Rights Act, or both. Some of the decisions of the lower court judges were inconsistent, and some of the issues, came up to the 7th Circuit in earlier challenges to the voter id aspects of the law.
Judge Easterbrook, as is his style, gives breezy and superficial treatment to many of these voting issues, making the three year delay in a unanimous case all the more inexplicable.

The opinion starts out with a very troubling discussion of Judge Adelman’s findings that some of these restrictive Wisconsin voting laws were passed with racial and partisan animus. The 7th Circuit found little direct evidence of racial discrimination and then suggested, in a very troubling way, that making it harder to vote on the basis of party is perfectly acceptable. ('If one party can make changes that it believes help its candidates, the other can restore the original rules or revise the new ones. The process does not include a constitutional ratchet.'). In support of this terrible idea, Judge Easterbrook cites the Rucho case from the Supreme Court, which held that there are no judicially manageable standards to separate permissible from impermissible consideration of party in redistricting. But that did not carry over into voting rules, like rules for early voting, and the Supreme Court has never held that partisan animus provides a legitimate basis for discriminatory voting rules.

Making matters even worse, Judge Easterbrook dismisses without analysis the argument that discriminating against Democrats when so much of the party is made up of racial minorities can in some circumstances be a form of racial discrimination. ('The record does not show that legislators made any of the changes because Democratic voters are more likely to be black (or because black voters are more likely to support Democrats). The changes were made because of politics.').

What Easterbrook's dismissive opinion does is give the green light to Republicans to stop as many black and brown people as possible from voting, as long as their party-line-enacted statutes and elected Republicans do not explicitly state 'stop black and brown voters.'

Two U.S. District judges in Wisconsin see Republican voter obstruction differently.

For example, Judge James Peterson writes in One Wisconsin Institute v. Thomsen, [Jacobs] (16-3091).:

[I] find that 2013 Wis. Act 146, restricting hours for in-person absentee voting, intentionally discriminates on the basis of race. I reach this conclusion because I am persuaded that this law was specifically targeted to curtail voting in Milwaukee without any other legitimate purpose. The legislature’s immediate goal was to achieve a partisan objective, but the means of achieving that objective was to suppress the reliably Democratic vote of Milwaukee’s African Americans. Thus, I conclude that the limits on in-person absentee voting imposed by Act 146 fail under the Fifteenth Amendment, as well as under the Anderson-Burdick analysis.

In sum, Wisconsin has the authority to regulate its elections to preserve their integrity, and a voter ID requirement can be part of a well-conceived election system. But, as explained in the pages that follow, parts of Wisconsin’s election regime fail to comply with the constitutional requirement that its elections remain fair and equally open to all qualified electors.

No rational person in Wisconsin disputes that the intent and effect of the Republican transformation of Wisconsin election law is to obstruct voters, except Easterbrook and fellow Republican judges on the Seventh Circuit.

So, for example, Waukesha County clerk Kathleen Novack (R), commenting on increased early-voting hours, opined in May 2016, that there "too much access to the voters as far as opportunities," (The Capital Times).

Novack added, when asked about increased municipal early-voting efforts in Madison and Milwaukee: "There has to come a point where it’s just giving over-access … to particular parts of the state." Novack wanted to stop early voting opportunities for Madison and Milwaukee, where most black and brown people live here.

Wisconsin Republicans know that four new Trump-appointed judges to the United States Court of Appeals for the Seventh Circuit—vetted by the Federalist Society to whom Trump outsources vetting of judicial appointments—will sustain the Republican Party position against voting rights.

Stopping non-Republican voters from voting is a strategic initiative for Wisconsin Republicans.

The  grave threat to democracy is existential. See See Twenty of America's top political scientists gathered to discuss our democracy. They're scared. "If current trends continue for another 20 or 30 years, democracy will be toast."

In less than three months in late September, absentee voting begins for the November General Elections.

Republicans know their only chance for victory is to suppress the total vote of non-Republicans, a commitment about which they hold no shame, and that Frank Easterbrook supports on the bench, (Wisconsin State Journal).

And Wisconsin racists are happy.

Wisconsin Voting Rights Trial: GOP's DoJ Is Back to Citing Polls as Constitutional Argument

Wisconsin Republican Party, DoJ Keep Citing Polling in Federal Litigation

At oral argument in the voting rights case, Frank et al v. Walker et al (No.: 14-2058), heard at the Court of Appeals for the Seventh Circuit in August 2014, Wisconsin DoJ Assistant Attorney General Clayton Kawski argued Wisconsin's restrictive photo voter ID is constitutional because results of a polling question on voter ID, (Marquette University Law School), showed more Wisconsin citizens favored voter ID than opposed it, (14-2058, Ruthelle Frank v. Scott Walker oral argument, civil,  09/12/2014) (2-minute, 34-second mark).

This argument on voting restrictions' constitutionality conditioned on polling numbers was ridiculed by the Seventh Circuit's three-judge panel.

"What conceivable relevance is a polling number to this litigation?," said Judge Frank Easterbrook, a voting rights opponent and author of the opinion upholding Wisconsin's photo voter ID law.

Seconds later after Judge John Tinder asked Clayton Kawski if popular laws can be unconstitutional, Kawski was forced to backtrack and admit the irrelevance of a polling figure to the constitutional questions.

One Wisconsin Institute v. Nichol 

The polling argument today is back at another Wisconsin voting rights trial, One Wisconsin Institute v. Nichol (U.S. District Court of the Western District of Wisconsin (Case 15-cv-324).

Notes Scott Ross, One Wisconsin Institute Executive Director on Facebook: 

So on day five of our vote trial, I have had my fav moment. The defense, [the Wisconsin DoJ], was asking our expert witness about her research on the absence of voter fraud in Wisconsin elections and noted 'polls show people support voter ID.' Our attorney came back with 'polls show some people believe our president is a Muslim,'

Polling figures as the basis for the constitutionality of laws designed to destroy the vote.

Now, that's a novel argument, but good enough for the Republican Party of Wisconsin and its adjunct operation in the Wisconsin Dept. of Justice.

Why is the Republican Party's DoJ advancing this discredited argument?

Richard Posner's Extraordinary Move to Sound the Alarm on GOP Voter Obstruction

Update: Republicans are not so certain about voters; enacting voter obstruction laws wherever they hold a majority, secure in the knowledge that federal Republican judges will reside in the Republican legislatures' "fact-free cocoon in which to lodge the federal judiciary." (Posner, Frank v. Walker; p. 26)
 ---
"Posner's dissent includes a devastating response to virtually every false and/or disingenuous rightwing argument/talking point ever put forth in support of Photo ID voting restrictions, describing them as "a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government." (Brad Friedman)
---
On the Court of Appeals for the Seventh Circuit known for its intellectual bulk, judges such as Easterbrook, Wood and Posner stand out.

What makes the public intellectual Richard Posner stand out more is this academic appointed by Ronald Reagan in 1981 has grown as a jurist, and now stands as a bulwark against the oppression the judiciary can inflict upon American citizens.

Posner as a sitting judge has taken the extraordinary step of requesting a rehearing on behalf of the five judges dissenting from Judge Easterbrook’s appalling opinion in Frank v. Walker.

The rehearing failed five-to-five.

The October 10 dissent authored by Posner is scathing and is certain to be noted when voting rights advocates take their consolidated cases to the US Supreme Court where a granting of cert is expected within 90 days.

Notes Posner:

The Practitioner’s Handbook for Appeals to the United States Court of Appeals for the Seventh Circuit states that 'en banc rehearing is authorized without a party’s invitation. A member of the court may ask for a vote on whether to rehear a case en banc.' I asked for a vote on whether to rehear the appeals en banc. The judges have voted, the vote was a 5 to 5 tie, and as a result rehearing en banc has been denied. We—the five who voted to grant rehearing en banc—believe that the decision to allow the panel’s opinion reversing the district court to stand, without consideration of the case by the full court, is a serious mistake.

Posner presents myriad arguments eviscerating the Easterbrook opinion, and as an example notes one bizarre element in Easterbrook's opinion that dismissed social scientific evidence introduced at federal trial last year because the evidence was published in the Harvard Law Review, a fact noted earlier this week by Rick Hasen.

Easterbrook refers to Judge Lynn Adelman, writing in his decision and order issuing a permanent injunction on April 29, 2014:

[O]ne of the plaintiffs’ expert witnesses, Barry Burden, a professor of political science at the University of Wisconsin–Madison, testified that the available empirical evidence indicates that photo ID requirements have no effect on confidence or trust in the electoral process. He described a study conducted by Stephen Ansolabehere and Nathaniel Persily and published in the Harvard Law Review which looked at the relationship between photo ID laws and voter confidence in the electoral process. See Stephen Ansolabehere and Nathaniel Persily, Vote Fraud in the Eye of the Beholder: The Role of Public Opinion in the Challenge to Voter Identification Requirements,121 Harv. L. Rev. 1737, 1756 (2008). Burden explained that this study employed multivariate analysis of survey data and found “zero relationship” between voter ID laws and a person’s level of trust or confidence in the electoral process. (p.18)

No relationship between voter ID laws and public confidence, the main argument advanced by Republicans in defense of their voter obstruction project after the occurrence of in-person voter fraud assertions by the Wisconsin DoJ were conceded not to exist during the 2013 trial in federal court.

This study is dismissed by Easterbrook.

Writes Posner:

"The panel opinion dismisses the Ansolabehere and Persily article on the ground that because it was published in the Harvard Law Review, it was not peer-reviewed. So much for law reviews. (And what about Supreme Court opinions? They’re not peer-reviewed either.)"

Posner goes on, as careful as Easterbrook is reckless in Easterbrook's "fact-free cocoon."

Concludes Posner:

"To conclude, the case against a law requiring a photo ID as a condition of a registered voter’s being permitted to vote that is as strict as Wisconsin’s law is compelling. The law should be invalidated; at the very least, with the court split evenly in so important a case and the panel opinion so riven with weaknesses, the case should be reheard en banc."

Scott Walker Brief Cites Falsehood in Absentee Voters, Confusion Reigns

Scott Walker's brief opposing a judicial order blocking Photo Voter ID asserts, "GAB (Wisconsin Governmental Accountability Board) provided local election officials with draft communications that are to be sent to every voter who has requested an absentee ballot, thereby informing those voters to provide a copy of their photo ID to local election officials."

After initial reports in the press of the Wisconsin Governmental Accountability Board (GAB) saying a copy of a Photo Voter ID could be sent with an absentee ballot already sent out, it turns out voters cannot receive absentee ballots unless their first present a Photo ID at City Hall in person.

This was only for some absentee voters.

The following excerpt from a letter sent by the City of Fitchburg to some other absentee voters attempting to interpret the GAB communications reads:

So, some absentee ballot voters (often disabled) have to make a trip to City Hall, present an ID and then receive an absentee ballot in the mail, according to the email above and a hardcopy letter.

"Clerks now have to follow up with three sets of voters — those who have requested absentee ballots but haven't been mailed one; those who have been sent absentee ballots but haven't returned them; and those who have already turned in their absentee ballots. Kennedy didn't have a breakdown of how many people fell into each group," notes Patrick Marley in the Milwaukee Journal-Sentinel.

Municipal clerks are struggling to make sense of GAB communiques, according to a Fitchburg City Hall source, as the GAB has resembled a cheerleader more than an agency ensuring Wisconsin voters get to vote.

Assisting a disabled voter yesterday, I was told that the voter could in fact send a copy of a Photo Voter ID with the ballot, but when I presented the letter saying first the voter had to come to City Hall and present an ID to get the ballot sent, the staffer said the GAB communications have been "confusing."

Catch 22 and confusion. For Scott Walker, mission accomplished.

Scott Walker Asks for Voter ID Chaos; Argues Against Vacating Stay Citing Confusion

"Plaintiffs [civil rights groups] focus on a very small number of voters who they speculate will have problems obtaining qualifying ID, but this focus on a fraction of the electorate is not a justification to revisit the panel’s Order" reads Scott Walker's brief against vacating a stay of Wisconsin Photo Voter ID law, passed with exclusive Republican support. (p.3)

Walker's very small number: 300,000 registered Wisconsin votes, who are unlikely to vote for Scott Walker.

Walker argues vacating the stay will cause "confusion," though he has made numerous requests for staying the law, vowing to have in Voter ID in place for Election Day, granting while the election had already begun. (p.7)

Rick Hasen has the story of the next step in appellate court; in sum law, reason and facts do not play well with Republican judicial activists.

Court Gives Scott Walker until Sept. 23 to Decide to Contest Emergency Petition on Voter ID Law

Scott Walker has until September 23 to decide to contest the Emergency Petition filed by civil rights groups to protect Wisconsin voters' right to vote.

A Court of Appeals for the Seventh Circuit's panel released yesterday its Scheduling Order to decide whether to grant an en banc (full court) hearing.

Scott Walker gets to decide if he should block non-Republican voters from voting or do the right thing and throw in with voting rights groups.

Wonder what Walker will do.

Scott Walker and the Republicans passed Act 23, Wisconsin's Photo Voter ID law, to disenfranchise as many non-Republican voters as possible.

A federal trial found as fact that minorities, college students and other legal voters would be disenfranchised.

An array of civil rights groups filed an Emergency Petition to vacate the appellate court's stay issued last Friday of the injunction on Act 23.

The Court of Appeals order was issued just 53 days before Election Day, and before administrative rules implementing Act 23 were even published in an astonishing order that threatens to throw the Wisconsin election to Scott Walker.

This election result would appear to be on the minds of U.S. Court of Appeals for the Seventh District judges: Frank Easterbrook, Diane Sykes and John Tinder, appointed by Republicans and at least two of whom, now three have shown more allegiance to Party than to law.

The 11th-hour order was released as the Wisconsin election was already underway, causing massive confusion and likely blocking 1,000s of citizens from voting, on top of the 10,000s the Voter ID law already is almost certain to stop from voting.

Calls for Fed DoJ Intervention in Wisconsin as an Election Is Rigged in Plain Sight

Black, brown, yellow and young need not vote here, says Republican Party, backed by Frank Easterbrook and the Court of Appeals for the Seventh Circuit

The message could not be clearer as each new Republican Party election law this spring was pushed through with minimal public input, with a GOP machine demonization project of the League of Women Voters of Wisconsin, referring to the League as "Vultures."

Republican candidates refuse to participate in debates sponsored by the League for opposing a package of GOP bills designed to obstruct voters likely to vote non-Republican.

Now, the GOP is attempting to steal the election in plain sight, and disenfranchise 10,000s in a best-case scenario.

We need the Civil Rights Division of the Department of Justice to intervene.

On Election Day from GOP-aligned "observers" newly empowered with the power to harass to a ridiculous order from three Republican judges changing the rules for voter ID on the eve of the election, federal help is needed.

It used to be considered in bad form to identify the party of the president who appointed a federal judge when discussing cases judges deliberate, but the federal judiciary has too often gone along with the Republican, quasi-fascist project that degrades the formal structures and foundations of our democracy.

Members of the federal judiciary ought to have no more credibility with the American public than any other politician.

The U.S. Court of Appeals for the Seventh Circuit judges are:

Wood - Clinton
Bauer - Ford (Senior status)
Cudahy - Carter (Senior status)
Posner - Reagan
Flaum - Reagan
Easterbrook - Nixon (learned a few tricks from the disgraced president about fixing elections and dirty tricks)
Ripple - Reagan (Senior status)
Manion - Reagan (Senior status)
Kanne - Reagan
Rovner - H.W. Bush
Williams - Clinton
Sykes - W. Bush
Tinder - W. Bush
Hamilton - Obama
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Q: What is a senior judge?
The "Rule of 80" is the commonly used shorthand for the age and service requirement for a judge to assume senior status, as set forth in Title 28 of the US. Code, Section 371(c). Beginning at age 65, a judge may retire at his or her current salary or take senior status after performing 15 years of active service as an Article III judge (65+15 = 80). A sliding scale of increasing age and decreasing service results in eligibility for retirement compensation at age 70 with a minimum of 10 years of service (70+10=80). Senior judges, who essentially provide volunteer service to the courts, typically handle about 15 percent of the federal courts' workload annually. (United States Courts)

Crisis Management Requires Straight Talk

Thousands of voters in Wisconsin are divided into discrete classes by the rules implementing the Seventh Circuit's ruling last week, and the classes are treated radically differently by sworn election officials. In a different context the disparity of treatment would constitute electioneering.

The cases are Ruthelle Frank v. Scott Walker (14-2058), and Milwaukee Branch of NAACP v. Walker.

Will Kevin Kennedy, top election bureaucrat, instruct municipal clerks to contact local media and let voters know that their "local Department of Motor Vehicles service centers are open only two days each week, generally for 10 hours?" (Milekski, the Capital Times) Will Kennedy speak to lack of wisdom and questionable ethics of lifting Judge Ademan's injunction last Friday?

That the question Todd D. Milekski's reporting raises in this reader of The Capital Times today:

For residents in 48 of Wisconsin's 72 counties, there are only 14 or 15 days left to secure a photo ID, needed to vote in the general election on Nov. 4.

In those 48 counties, the local Department of Motor Vehicles service centers are open only two days each week, generally for 10 hours, on Monday and Wednesday or Tuesday and Thursday.

With seven weeks left until the general election and the state's voter ID law back in place thanks to a ruling Friday by the U.S. 7th Circuit Court of Appeals, the clock is ticking for anyone who needs identification that will allow them to vote on Nov. 4.

No, these residents in the 48 counties referenced won't be given any phone calls from local election officials because the Seventh Circuit just changed the rules of the game, and the GAB is making no moves to help these people with little opportunity to get an ID, not even in rhetoric.

Other voters will be personally contacted and advised of the rule changes, per the GAB.

"For those ballots that have already gone out, clerks will have to contact voters and inform them they need to submit a copy of their photo ID before their vote will be counted. The G.A.B. has developed a communication for clerks to use," the Government Accountability Board's Kennedy said today in prepared remarks.

Elsewhere, Jessica VanEgeren in the Cap Times notes today that almost 12,000 absentee ballots have already been sent out, and to "give an idea of how many residents vote absentee, there were 230,744 absentee ballots cast in 2012 and 664,597 ballot cast in 2012, according to the GAB."

The point here is that the ad hoc scheme the GAB is devising will have major consequences on the election, beyond the fact that voters are treated differently by election officials with the costs potentially being the loss of the franchise.
The costs are high.

Kennedy and others at the GAB should quit playing the 'crats-afraid-for-their-jobs game, stow the boilerplate rhetoric, state how important elections are and that they are imperiled, and how irregular the Court's ruling is on the eve of Election Day.

That the facts of the panel's ruling have not penetrated the Court of Appeal for the Seventh Circuit is beyond dispute.

Here's a suggested statement for Kennedy for tomorrow:

What we have done is treat voters differently under the laws and regulations of Wisconsin. Yes, there are Equal Protection violations, I mean you cannot have election official favor one class of voters. At fault is U.S. Court of Appeal for the Seventh Circuit' three judge panel and its imbecilic ruling in Ruthelle Frank v. Scott Walker (14-2058), and Milwaukee Branch of NAACP v. Walker.

Don't hold your breath for that ruling; Kennedy is not exactly known for moral courage.

That Equal Protection Thing

I don't think the four Republicans on Wisconsin Supreme Court and the three Republicans on the panel of the U.S. Court of Appeals for the Seventh Circuit adjudicating Ruthelle Frank v. Scott Walker (14-2058), and Milwaukee Branch of NAACP v. Walker like their branch of government anymore.

They prefer to morph into a mega entity that makes and carries out laws as well, unequal law at that.

The four Republicans ignored Article Three of the Wisconsin Constitution in the cases shredding any illusion the Wisconsin Supreme Court Republicans are independent, impartial and fair-minded interpreters of the law and the U.S. and Wisconsin Constitution, ignored in its tortured opinion.

As for the Court of Appeals for the Seventh Circuit panel, last Friday it stayed a U.S. District Court's injunction without an opinion, now 21 legal days out from Election Day, in its order in Ruthelle Frank v. Scott Walker (14-2058), and Milwaukee Branch of NAACP v. Walker.

Now, because of the Court panel's order the Wisconsin Government Accountability Board has issued ad hoc rules in effect implementing the panel's order by creating different classes of citizens, presenting obvious 14th Amendment Equal Protection Problems.

Some voters can submit copies of ID by mail (or become disenfranchised), some voters have to show their ID (not copies) when they vote (or become disenfranchised); 100s of voters are being contacted by municipal clerks and staff informing them of the status of election law and rules, if they can be reached.

Other voters get no calls from election officials informing them of the status of election rules.

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The above is what geniuses in American jurisprudence such as Judge Frank Easterbrook refer to as a biggie.

Man, did these guys on the Seventh Circuit—Easterbrook, Diane Sykes and John Tinder—blow this one.

Judge Frank Easterbrook Disappoints

Judge Frank Easterbrook (of the U.S. Court of Appeals for the Seventh Circuit) shamed himself.

Easterbrook is on the three-judge panel that ordered the reinstatement of Wisconsin Act 23, the photo voter ID law.

I expect this type of action in the Judiciary from the likes of Diane Sykes (one of Easterbrook's colleague on the panel), or from a decision in the Fifth or 11th circuits in the south.

Not from Easterbrook, who it appears did not give the panel's order much thought, staying the injunction 53 days out from Election Day without any stated concern.

"The record says virtually nothing about the difficulties faced by either indigent voters or voters with religious objections to being photographed. While one elderly man stated that he did not have the money to pay for a birth certificate, when asked if he did not have the money or did not wish to spend it, he replied, “both.” App. 211–212. From this limited evidence we do not know the magnitude of the impact SEA 483 will have on indigent voters in Indiana. The record does contain the affidavit of one homeless woman who has a copy of her birth certificate, but was denied a photo identification card because she did not have an address. Id., at 67. But that single affidavit gives no indication of how common the problem is." - (Justice Stevens opinion announcing the judgment of the Court and delivering an opinion in which The Chief Justice and Justice Kennedy in WILLIAM CRAWFORD, et al., PETITIONERS v. MARION COUNTY ELECTION BOARD et al (2008))

Compare this dearth of social scientific evidence in Crawford with the mountain of evidence presented in Frank v. Walker, (Case 11cv1128) and League of United Latin American Citizens of Wisconsin v. Deininger (Case 2:12-cv-00185).

What is Easterbrook thinking?

Yes, a plurality of three justices joined the opinion of the Court in Crawford in 2008 in which no trial took place.

So that's it forever? Crawford can never be overturned or altered; no matter what or how much evidence or argument is presented in federal court demonstrating its effect on real people whom Easterbrook seems to forget are these beings with emanating rights?

Consider: Footnote 6 from Crawford: "In other words, an estimated 99% of Indiana’s voting age population already possesses the necessary photo identification to vote under the requirements of SEA 483.” 458 F. Supp. 2d, at 807. Given the availability of free photo identification and greater public awareness of the new statutory requirement, presumably that percentage has increased since SEA 483 was enacted and will continue to increase in the future."

Some 10 per cent are estimated in Wisconsin to lack the proper ID. That extra nine in Wisconsin as opposed to Indiana was found at trial to compose some 300,000 voters.

So, Wisconsin has had since Monday opportunity for greater public awareness of the new statutory requirement to vote, and the some 300,000 Wisconsin citizens who are eligible to vote but don't have a GOP-approved ID.

No substantive problem for Easterbrook.

But consider this from Easterbrook and his two colleagues order last week: "It [U.S. District Judge Lynn Adelman] did this [issued a permanent injunction] based on findings that it thought showed that Wisconsin did not need this law to promote an important governmental interest, and that persons of lower income (disproportionately minorities) are less likely to have driver’s licenses, other acceptable photo ID, or the birth certificates needed to obtain them, which led the court to hold that the statute violates §2 of the Voting Rights Act, 42 U.S.C. §1973." 

No.

The panel misstates Judge Adelman's ruling in this strange formulation: "Wisconsin did not need this law to promote an important governmental interest." Adelman is not in the legislating business.

This did-not-need-this-law sentence is amateur stuff, and surely was not written by Easterbrook.

What Adelman did find is that no state interest was served by Wisconsin Act 23's mandate to present a photo ID as a condition to vote to stop in-person voter fraud, a crime which even the State of Wisconsin admitted it could not produce even one instance of ever occurring.

In fact, Adelman's opinion, as a good opinion should, well considers the State's justifications for Act 23, and takes them apart.

"Wisconsin Republicans ... four justifications for the Photo ID restriction: "(1) detecting and preventing in-person voter-impersonation fraud; (2) promoting public confidence in the integrity of the electoral process; (3) detecting and deterring 'other types of voter fraud;' and 4) promoting orderly election administration and accurate recordkeeping." (Canning, The Brad Blog)

Against this Adelman found as fact that potentially some 300,000 Wisconsin voters lack the restrictive form of ID.

Adelman proceeded to use the balancing test, the Anderson/Burdick test, that six members of the Crawford Court said is appropriate essentially finding that ZERO voter in-person voter fraud against some 300,000 weighs towards the 300,000.

I recommend Easterbrook read Ernest A. Canning's work on this matter, and maybe have a chat with Judge Richard Posner.