Wisconsin Voter ID Status Unclear as Frank Easterbrook Takes Refuge in Fact-free Cocoon

Judge Lynn Adelman's injunction against the Republican-enacted photo-voter ID law has been stayed, or halted by three Republican-appointed appellate judges in the voting rights case, Frank v. Walker.

Judge Frank Easterbrook's order from the U.S. Court of Appeals for the Seventh Circuit reads in part, "Because the district court has not attempted to distinguish genuine difficulties of  the kind our opinion mentioned, 819  F.3d  at  385–86, or any other variety of substantial  obstacle to voting, from any given voter’s  unwillingness to make the effort that the Supreme Court has held that a state can require, there is  a substantial likelihood that the injunction will be reversed on appeal," (Wisconsin DoJ document).

With Judge James Peterson's injunction in One Wisconsin Institute, inc v. Thomsen, against a wide range of Republican obstruction laws, including voter ID, still in place, the question is, will voter ID be in place for the presidential election in November?

Writes Peterson, "I conclude that the IDPP, [ID Petition Process], is unconstitutional and needs to be reformed or replaced. Because time is short with the fall elections approaching, I will issue an injunction targeted to the constitutional deficiencies that I identify."

Even election law experts can only offer speculation on what happens next.

Leading Wisconsin writers on the voting rights battle, Jason Stein and Patrick Marley of the Milwaukee Journal Sentinel, can only find sources to offer this in their coverage: "Voters should keep following the news — the rules could change again between now and the Nov. 8 presidential election."

What is clear is that the Republican Party of Wisconsin and voting rights activists are at cross purposes.

The most likely next legal moves include the State of Wisconsin enacting last-minute administrative rules changing the ID Petition Process, (IDPP), to make the rules acceptable to Judge Peterson to save the voter ID legal regime in One Wisconsin, and an emergency appeal to the full court of the U.S. Court of Appeals for the Seventh Circuit by voting rights attorneys in Frank v. Walker.

From the Washington Post, (Zapotosky):

Dale Ho, director of the Voting Rights Project for the American Civil Liberties Union, said that as many as 300,000 registered voters in Wisconsin lack the right photo ID, although he acknowledged that not all of those people would vote and some probably could obtain documentation without much trouble. The ACLU had sued over the law.

As to whether requiring ID could tip the election in favor of the Republicans who support the law, Ho said: 'Obviously, the people behind these laws think it can help them. Whether or not it can, from our perspective, it really doesn’t matter. We’re just trying to make sure everyone can vote.'

As noted here, on September 22, 47 days from Election Day on November 8, the Wisconsin Elections Commission (WEC), will begin mailing absentee ballots to local election clerks who in turn mail ballots to several classes of voters, per Wisconsin Statute, including permanent absentee voters, (Wisconsin Elections Commission (WEC)).

Wisconsin voters should receive absentee ballots around September 29.

It is a judicial doctrine, the Purcell Principle, that federal courts will not change election laws after the voting process has begun. So, the clock is ticking.

Still, the Republican voter obstruction project is continuing in other ways:

During Election Day yesterday, Republican election inspectors, began a tactical voter suppression action that resulted in this voter being denied my right to vote for 35 minutes. This voter suppression action apparently includes use of outright hostility, mocking, and prevention of voting by Republican election inspectors who are now individually named by the Republican Party of Wisconsin.

Similar reports, including one incident involving the mother of a Fitchburg, Wisconsin alder, were fielded by elected office holders who say the tactical suppression program may spell trouble for voters on November 8, Election Day.

The obstruction incident at Fitchburg Fire Station, Number 2 yesterday, will be investigated by the Dane County District Attorney's office and the Wisconsin Elections Commission, upon receipt of complaints and relevant reports, top officials of the two agencies said yesterday after being reached by phone.

Wisconsin Democratic Congressional Members Want DoJ Review of Voter ID Law

Republicans Block Voters in Continuing Effort
to Stay in Political Power

WASHINGTON, D.C. – "U.S. Senator Tammy Baldwin (D-WI) and U.S. Representatives Ron Kind (D-WI 3), Gwen Moore (D-WI 4) and Mark Pocan (D-WI 2) today called on the U.S. Department of Justice to conduct a review of Wisconsin’s voter identification requirements and consider bringing a legal challenge or join litigation in Wisconsin’s Eastern and Western District Courts."

So reads a press release dated May 2, 2016 by Wisconsin's entire Democratic Party congressional delegation.

Notes the press release:

In a letter to Attorney General Loretta Lynch, the Wisconsin Congressional Democrats urge the Justice Department to conduct a review of Wisconsin’s potentially discriminatory voting requirements to determine whether they are consistent with the Voting Rights Act and federal constitutional protections for the right to vote. The members of Congress also call for a review of all the options available to the Department of Justice, including bringing a legal challenge or intervening in existing litigation. The U.S. Court of Appeals for the Seventh Circuit has ruled that eligible voters facing difficulty obtaining ID have the right to challenge the law as it applies to them. This issue is now back before Wisconsin’s Eastern District court. A separate challenge brought in the state’s Western District is scheduled to go to trial in May.

The two cases in federal court challenging the Wisconsin photo voter ID law are One Wisconsin Institute v. Nichol (United States District Court of the Western District of Wisconsin (Case 15-cv-324—U.S. District Judge James D. Peterson)), and Frank v. Walker, (United States District Court for the Eastern District of Wisconsin (Case No. 11‐C‐01128—U.S. District Judge Lynn Adelman))

The letter to the U.S. DoJ follows another admission by a national Republican that state voter ID laws are intended to obstruct voters who tend to vote non-Republican, (Graham, The Atlantic).

In Wisconsin U.S. Rep. James Sensenbrenner (R) continues to advocate for state photo voter ID laws while employing a novel pretense to being a champion of voting rights, (Mal Contends).

For a related analysis of Frank v. Walker and this case's status in the Court of Appeals for the Seventh Circuit, see Canning in The Brad Blog, particularly as Canning's piece focuses on Judge Frank Easterbrook and his ruling cited in the Wisconsin Democrats' letter.

Writes Canning:

Despite the likely encouraging benefits to voters in the new ruling, the new panel decision is, nonetheless, fraught with intellectual dishonesty. 'Plaintiffs now accept the propriety of requiring photo ID from persons who already have or can get it with reasonable effort,' Easterbrook writes, [p.4], 'while endeavoring to protect the voting rights of those who encounter high hurdles.'

Plaintiffs did not accept 'the propriety' of Wisconsin's Photo ID law because they were now convinced by Easterbrook's earlier reasoning. They advanced their alternative theory in this new challenge because they were forced to accept the premise of Easterbrook's earlier controversial panel decision thanks to a legal doctrine known as the law of the case. Once Easterbrook's earlier opinion became final, the plaintiffs could no longer make the argument that Wisconsin's photo ID law violated the Voting Rights Act or the U.S. Constitution per se. They were forced to argue that the specific issues now before the court --- VA identification cards and the rights of voters who could not 'obtain a qualifying photo ID with reasonable effort" --- had not been addressed by the earlier decision.

Easterbrook's mid-April opinion follows his October 2104 opinion in the same case that was heavily criticized by jurists around the nation, and described by Canning as "extraordinarily partisan, factually deficient, [and] riddled with errors ... ."

The bottom line is legislative Republicans want photo voter ID laws to stay in political power, and Republican judges like Frank Easterbrook are perfectly content to throw away their reputations for impartiality and diligence in service to the Republican Party.

John Edwards, Justice and the Rule of Lenity

Political Persecution in an electoral swing state? Why no questions?

As we read of the federal prosecution of John Edwards, we ought consider Scott Horton's Primer in Political Prosecutions, mustering some skepticism about the federal government launching such a heavy-handed criminal case.

Bloomberg reports, "John Edwards, the former U.S. presidential candidate accused of accepting illegal campaign contributions to hide an extramarital affair, should face an October criminal trial, a federal prosecutor said."

The criminal case is U.S. v. Edwards, 11-00161, U.S. District Court, Middle District of North Carolina.

The "federal grand jury indicted Edwards this month on charges of accepting illegal campaign funds, conspiracy and making false statements," reports Bloomberg.

On June 10, NBC 17 reported, "The U.S. case against John Edwards includes 300,000 pages of documents ... ."

Guess the defense will have to do some quick Summer reading.

U.S. Attorney George Holding, a George W. Bush appointee, resigned in early June, just after Edwards was indicted.

Holding said not one word about the U.S. Atty scandal, a forgotten memory in American corporate media.

Edwards was indicted on June 3, at which time Edwards blasted the prosecution, reports McClatchy News.

A former chairman of the Federal Elections Commission issued a statement through Edwards’ legal team that called the charges 'misguided' and based on an 'erroneous' reading of the law.

"A criminal prosecution of a candidate on these facts would be outside anything I would expect after decades of experience with the campaign finance laws," said Scott E. Thomas, an FEC commissioner for 20 years.

Edwards' case has the hallmarks of another corrupt Bush-Cheney persecution crafted by a young U.S. Attorney with a political agenda using federal law in a creative, brand-new way to get a political opponent.

Will the new U.S. Atty halt the prosecution? We should be watching and asking questions.

Like Wisconsin's Steven Biskupic's politically motivated prosecution [among many] of Georgia Thompson with the GOP press in tow, the force of the federal government is wielded with very little comment in this most depoliticised of countries.

From the Huffington Post:

Holding is a member of the prominent Smithfield banking family that controls much of First Citizens BancShares Inc., the parent company of First Citizens Bank. Plans of his resignation were first reported by The News and Observer of Raleigh on June 3.

Rule of Lenity

Here's a look back at the persecution of an innocent woman in Wisconsin, Georgia Thompson, and a repeat of the media's disinclination to challenge federal prosecutions.

The opinion [overturning the conviction of an innocent woman persecuted by U.S. Atty Stephen Biskupic] notes that this 'open-ended quality' and '(h)aziness' of the [criminal] statute should never be used by prosecutors to bring creative and novel prosecutions, per the 'Rule of Lenity.'

The Rule of Lenity, as [Chief Judge Frank H.] Easterbrook notes, is the judicial doctrine that 'ambiguity in criminal legislation be read against the prosecutor, lest the judiciary create, in common-law fashion, offenses that have never received legislative approbation … .'

Let’s translate.

Prosecutors should not invent crimes by stretching laws to the breaking point so they can bring prosecutions under our laws that were not made to ban imaginary crimes dreamed up by creative prosecutors—or in Biskupic’s case, a corrupt prosecutor seeking the favor of Karl Rove.

Prosecutorial Discretion

But we do have a check on hazy, open-ended laws, so that prosecutions of innocents never have to reach an appeals court.

It’s called 'prosecutorial discretion,' but it’s in short supply nowadays, and Biskupic is not alone in his refusal to exercise it (liberals especially like to use the prosecutors’ office as vehicles for their political careers, too often excluding prosecutorial discretion in the conduct of their offices).

As discussed in an address, The Federal Prosecutor, by the great jurist Robert H. Jackson (1892-1954), prosecutorial discretion—measured and well-considered decision-making by the prosecutor on whom he or she is going to prosecute—requires that that prosecutors 'select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.'

Jackson notes that a 'sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims ... .'

When Biskupic (still) defends his prosecution against the innocent Thompson by noting he was able to convince a jury and two trial judges of his view of the charges, he misses Jackson’s point that Biskupic should exercise prosecutorial discretion precisely because the prosecutor’s office is immensely powerful and persuasive, and that 'the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.'

Thompson and Biskupic’s current voting-fraud prosecution victims would agree.

Holding was one of the last U.S. attys held over from the Bush-Cheney regime.

Nothing Holding says should be trusted, certainly not his hazy, novel prosecution of a political figure launched on the eve of a presidential election in an important swing state.

US v. Roberts Chief Judge Wrote Opinion Freeing Georgia Thompson

The Chief Judge hearing the U.S. v. Roberts oral arguments in late October is the same judge who wrote the opinion that freed the innocent Wisconsin state worker, Georgia Thompson, court transcripts show.

Frank H. Easterbrook, Chief Judge of the Court of Appeals for the Seventh Circuit, in freeing Thompson, pushed U.S. Atty Stephen Biskupic into the spotlight, and the Thompson case and Biskupic have become the subjects of congressional committee hearings as the U.S. Attorneys' and the U.S. Dept. of Justice scandal continues.

Easterbrook is regarded as an independent and brilliant judge.

Roberts of the US v. Roberts case is a Wisconsin Vietnam-era Navy veteran (who was diagnosed with Post Traumatic Stress Disorder by some five different mental health professionals) and was indicted and convicted of what are widely seen as trumped-up federal charges of wire fraud for receiving VA benefits.

Veterans across the nation are watching the outcome of the case that would if the conviction were left intact theoretically place in jeopardy 100,000s of veterans who cannot prove disability claims related to diagnosed PTSD.

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