Showing posts with label GOP Voter obstruction. Show all posts
Showing posts with label GOP Voter obstruction. Show all posts

Sep 17, 2014

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

---
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)

ACLU Files Emergency Appeal to Vacate Stay of Appellate Panel, Protect the Vote

Update: Emergency petition can be found here.

The ACLU has filed an Emergency Petition for a Rehearing En Banc (before the full Court of Appeals for the Seventh Circuit) Tuesday in an effort to halt the Wisconsin Voter ID law and save the voting rights of 10,000s of Wisconsin citizens.

This legal case is a partisan issue. The Republican Party of Wisconsin remain hostile to voting rights of all eligible Wisconsin citizens while Democratic Party takes the position of defending the voting rights of all eligible Wisconsin citizens.

Make no mistake, Scott Walker and J.B. Van Hollen are attempting to steal this election by disenfranchising Wisconsin voters.

The Emergency Petition notes last Friday panel's order "involves a question of exceptional importance under Fed. R. App. P. 35(b)(1)(B) because it imposes a radical, last-minute change to procedures for conducting an election that is already underway. The risk of disenfranchisement from imposing such a last-minute disruption far outweighs the non-existent harm to the state of maintaining the status quo and not requiring photo ID for one more election. Supreme Court precedent and other Circuits uniformly caution against such eleventh-hour changes to the election laws, even where those courts have approved such changes for future elections. ..."

... It is not only unreasonable, but also mathematically, logically, and physically impossible that by November 4, hundreds of thousands of voters will learn about the need for ID, especially given the total Case: 14-2058      Document: 65-1            Filed: 09/16/2014      Pages: 623  suspension of public information about the law for two and one-half years, collect multiple required documents, get to a DMV office, and obtain the ID suddenly required by staying the District Court‟s injunction last Friday afternoon. Doing so would require Wisconsin to issue some 6,000 photo IDs per day between now and the election. ..."

... The Petition notes that a "fundamental change in election procedures just before an election will sow confusion among voters and elections officials. ..."  

... The panel's decision to allow Act 23 to go into effect at this late date virtually guarantees substantial chaos in election administration and resulting voter confusion and disenfranchisement in the November elections. This will be contrary to the public interest, and will undermine voter confidence."

The EMERGENCY PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC OF PANEL ORDER GRANTING MOTION TO STAY statement and argument are below [footnotes, citations and other characters such as page numbers are included):

STATEMENT REQUIRED BY FED R. APP. P. 35(b)(1) Pursuant to Fed. R. App. P. 2, 35(b), 40 Plaintiffs-Appellees file this Emergency Petition for Rehearing En Banc, which should be granted for two reasons:
First, the panel decision involves a question of exceptional importance under Fed. R. App. P. 35(b)(1)(B) because it imposes a radical, last-minute change to procedures for conducting an election that is already underway. The risk of disenfranchisement from imposing such a last-minute disruption far outweighs the non-existent harm to the state of maintaining the status quo and not requiring photo ID for one more election. Supreme Court precedent and other Circuits uniformly caution against such eleventh-hour changes to the election laws, even where those courts have approved such changes for future elections. See Purcell v. Gonzalez, 549 U.S. 1 (2006).

Second, the panel‟s extraordinary decision to grant a stay pending appeal – which altered rather than maintained the status quo – ignored the four-factor test for such relief set forth by the United States Supreme Court in Nken v. Holder, 556 U.S. 418, 434 (2009), and the Court‟s admonition against last-minute reversals of lower court election law rulings in Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006).

Specifically, the panel decision failed to consider that issuance of the stay and the consequent slapdash implementation of a complex law – which was designed to have a rollout period of 8 months before a primary and 16 months before a general election – “will substantially injure” the rights of voters without ID, and that “the Case: 14-2058      Document: 65-1            Filed: 09/16/2014      Pages: 622  public interest lies” strongly against fundamentally changing the rules of an election on the eve of the election, particularly where absentee voting is already underway. In addition, the panel decision failed to consider seriously one of the “most critical” factors. Defendants will not be “irreparably injured absent a stay,” Nken, 556 U.S. at 434, if the election proceeds without a photo ID requirement, as has been the case in all but one election in Wisconsin‟s history.

STATEMENT OF THE CASE

Wisconsin adopted Act 23 in the spring of 2011 to require voters to present one of a limited number of forms of photo ID to vote in-person or, with very limited exceptions, by absentee ballot. Act 23 was in effect for only one low-turnout primary in February 2012, after which it was enjoined by state and federal courts. In light of the injunctions, Wisconsin suspended the photo ID requirement itself and all implementation of the Act, including training of the 1,852 municipal clerks who run Wisconsin elections and tens of thousands of poll workers, and all public information and educational outreach to voters for two and a half years. In this case, the district court found that approximately 300,000 voters do not have the most common form of ID that would now be needed to vote on November 4 (exactly 7 weeks from today), which is an unexpired driver‟s license or state-issued photo ID. See Frank v. Walker, No. 11–CV–01128, 12–CV–00185, 2014 WL 1775432, at *11 (E.D. Wis. Apr. 29, 2014). It is not only unreasonable, but also mathematically, logically, and physically impossible that by November 4, hundreds of thousands of voters will learn about the need for ID, especially given the total Case: 14-2058      Document: 65-1            Filed: 09/16/2014      Pages: 623  suspension of public information about the law for two and one-half years, collect multiple required documents, get to a DMV office, and obtain the ID suddenly required by staying the District Court‟s injunction last Friday afternoon. Doing so would require Wisconsin to issue some 6,000 photo IDs per day between now and the election.  Nevertheless, on September 12, 2014, a panel of this Court granted Defendants‟ motion for a stay of the district court‟s injunction forbidding implementation of the photo ID requirement. By granting a stay on the eve of this year‟s elections, with thousands of absentee ballots already in the mail, the panel decision forces a radical change in election procedures with no time for preparation, training, or outreach. Such a radical change is improper when a state‟s “election machinery is already in progress.” Reynolds v. Sims, 377 U.S. 533, 585 (1964).  Moreover, the panel‟s decision referenced submissions by Defendants tendered several hours after oral argument, see ECF 61, concerning the state‟s new policies (apparently adopted a day earlier) responding to the Wisconsin State Supreme Court‟s decision in Milwaukee Branch of NAACP v. Walker, 2014 WI 98, ¶¶ 62-63 (July 31, 2014) (NAACP). That case, recognizing the “severe burdens” imposed by Act 23, required the Wisconsin Department of Motor Vehicles (DMV) to make free IDs available to those who would otherwise have to pay for documents like birth certificates to get ID. 2014 WI 98, ¶ 70. After six weeks, with no official action, counsel for Defendants announced for the first time during oral argument on September 12, 2014, that DMV had issued new emergency rules that purport to Case: 14-2058      Document: 65-1            Filed: 09/16/2014      Pages: 624  address the identified deficiencies. Before and during argument, Plaintiffs had no opportunity to view these rules, much less question or dispute them. Defendants filed them after oral argument concluded. ECF 61. Soon thereafter, and without affording Plaintiffs any opportunity to respond, the panel issued the stay, reasoning that NAACP and the state‟s new policies “reduce[] the likelihood of irreparable injury” to plaintiffs and “change the balance of equities.” ECF 64 at 2.  The panel‟s decision to allow immediate implementation of Act 23 this close to an election will sow chaos at the polls and undermine election integrity and public confidence in the November 4 election. The decision raises questions of voting rights and election administration that are of exceptional public importance.  Fed. R. App. P. 35(a)(2). The risk of disenfranchisement and electoral chaos from granting a stay far outweighs the abstract harm to the state in delaying photo ID for one more election. Plaintiffs therefore request that this Court reconsider the panel‟s decision or review the panel‟s decision en banc on an expedited basis and vacate the stay order, which will simply preserve the status quo while the panel reviews the merits of the appeal.1 See Fed. R. App. P. 35(a) (providing for en banc review of an appeal “or other proceeding”); Flower Cab Co. v. Petitte, 685 F.2d 192, 195 (7th Cir. 1982) (Court of Appeals has power to grant rehearing or rehearing en                                                  1 Plaintiffs request that consideration of this petition be expedited pursuant Fed. R. App. P. 2. Time is of the essence to avoid a rush to implement Act 23 without adequate training or preparation, which is already causing confusion among voters, elections officials, clerks and poll workers that will inevitably interfere with election administration and lead to the unnecessary and unlawful disfranchisement of many voters. See 16A Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction 3d § 3948, at 25 (1999); 1967 Advisory Committee Note to Fed. R. App. P. 2; Groendyke Transport, Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).  Case: 14-2058      Document: 65-1            Filed: 09/16/2014      Pages: 625  banc of a stay granted by a panel of the Court).

ARGUMENT

As the Supreme Court explained in Nken, courts must consider four factors when deciding whether a stay is warranted: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.  556 U.S. at 434 (citations omitted). “The first two factors of the traditional standard are the most critical.”  Id. The “party requesting a stay bears the burden of showing that the circumstances justify” a stay. Id. Here, by failing to balance the dramatic harm to the public and to voters who currently lack ID in changing the rules of an election at the eleventh-hour against the lack of any irreparable harm to the state in waiting to implement photo ID for one election, the panel‟s decision fails to heed the proper standard articulated in Nken, and should be overturned.

I.  FUNDAMENTALLY CHANGING THE RULES JUST BEFORE AN ELECTION WILL SUBSTANTIALLY HARM THIRD PARTIES AND THE PUBLIC INTEREST WITH NO APPRECIABLE BENEFIT TO THE STATE  In issuing the stay, the panel made no finding as to the effect of its decision on other parties and the public interest. This omission is particularly glaring because this factor points decisively against a stay.  A. No court has permitted a voter ID law to go into effect this close to an election based on last-minute changes to the law.  Last-minute orders changing election procedures – particularly from an Case: 14-2058      Document: 65-1            Filed: 09/16/2014      Pages: 626  appellate court reversing a district court – are strongly disfavored, because “[c]ourt orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.”  Purcell, 549 U.S. at 4-5. No court has permitted a voter ID law to take effect based on purported ameliorative changes adopted this close to an election. For examplehttp://www.jsonline.com/news/appeals-panel- questions-why-voter-id-shouldnt-be-in-place-nov-4-b99350157z1-274904111.html, The record was clear before the stay that this was likely to be the case. See ECF 53 (Plaintiffs-Appellees‟ Opposition to Defendants-Appellants' Expedited Motion to Stay Permanent Injunction Pending Appeal and ECF 56-2 at 3 (Declaration of Kevin J. Kennedy).  4 See Dee J. Hall, Absentee ballots already cast will need photo ID, elections official says, NEWS REPUBLIC (Sept. 16, 2014), http://www.wiscnews.com/baraboonewsrepublic/news/state-and- regional/article_3de3068c-18f3-5887-bb10-3648b28d6eab.html; Patrick Marley, Voters who returned absentee ballots must send ID copies, J. SENTINEL (Sept. 16, 2014), http://www.jsonline.com/news/statepolitics/ballot-fight-is-brewing-as-state- scrambled-on-voter-id-b99352576z1-275311521.html.  Case: 14-2058      Document: 65-1            Filed: 09/16/2014      Pages: 629  way, printing the ballots. Absentee ballots have indeed already been sent . . . .”); Fishman v. Schaeffer, 429 U.S. 1325, 1330 (1976) (Marshall, Circuit Justice) (denying “extraordinary relief” where absentee ballots were being printed and distributed).5 Even Defendants‟ trial witness municipal clerk Diane Hermann-Brown admitted the stay “complicates the election for clerks because it comes as voters are already requesting and in some cases receiving absentee ballots.”6  C. Voters without ID will be substantially harmed by a stay, given their lack of information and inability to rapidly obtain ID.    On the eve of an election, “the Court of Appeals was required to weigh  . . . considerations specific to election cases,” and to “give deference to the discretion of the District Court.” Purcell, 549 US at 4. Failure to do so constitutes error. Id. Yet the panel failed to consider the “substantial harm” to 300,000 registered voters that the district court found lack ID,7 many of whom do not use ID in their daily lives or who have a form of ID, like Veterans‟ Administration ID, that is not acceptable for voting.8 Frank 2014 WL 1775432, at 2. These voters have no reason to know they 5 See also Nader v. Blackwell, 230 F.3d 833, 834-35 (6th Cir. 2000) (inappropriate to change party-identification procedures after absentee ballots already printed and mailed); Perry v. Judd, 471 Fed. Appx. 219, 2012 WL 120076, at *8 (4th Cir. Jan. 17, 2012) (change in rules after absentee ballots already printed would be improper); cf., Williams, 393 U.S. at 35 (last minute ballot change could interfere with rights of absentee voters). 6 Jason Stein and Patrick Marley, Absentee ballot mailings halted in push to restart voter ID law, J. SENTINEL, http://www.jsonline.com/news/statepolitics/clerks- elections-officials-scramble-to-reinstate-voter-id-law-b99351689z1-275146501.html 7 Many voters who have obtained ID since 2011 were not new voters without ID, but voters renewing ID or replacing lost or stolen ID cards. Frank v. Walker, 11-CV- 01128, 2014 WL 1775432 at 38 (E.D. Wis. Apr. 29, 2014). 8 The stay will also impose substantial harm on student voters. Regular student ID Case: 14-2058      Document: 65-1            Filed: 09/16/2014      Pages: 6210  would even need ID to vote less than two months from now, because the Government Accountability Board (GAB), which administers elections, suspended all public information and outreach about the law in March 2012. NAACP, 2014 WI 98 at ¶¶ 15-16. Cf. South Carolina, 898 F. Supp. 2d at 49-50 (insufficient time for voters to learn requirements and obtain ID); U.S. Student Ass'n v. Land, 546 F.3d 373, 387-8 (6th Cir. 2008) (voter confusion that would result from stay constitutes harm to others and to public interest). But Act 23 will offer no fail-safe affidavit option for voters without ID, rendering this law materially different from Indiana‟s. Contrast, Crawford v. Marion Cnty. Elections Bd., 553 U.S. 181, 185-6 (2008). Although Act 23 required public information and voter assistance, id. at §§ 95, 144(1), GAB had no intention of even developing a new plan for public information and outreach until 2015, much less a plan that can be implemented to reach voters in less than two months to ensure that these voters understand Act 23, how to get ID, and the new procedures for obtaining it.9  Defendants‟ emergency rules will not even be published until September 17.10  Other than press releases,                                                                                                                                                              cards are not acceptable for voting in Wisconsin and colleges‟ plans to produce alternative voting IDs that expired no more than two years after issuance were reportedly put on hold after the injunctions. Jason Stein and Patrick Marley, Absentee ballot mailings halted in push to restart voter ID law, J. SENTINEL, http://www.jsonline.com/news/statepolitics/clerks-elections-officials-scramble-to- reinstate-voter-id-law-b99351689z1-275146501.html  9 See, http://gab.wi.gov/sites/default/files/event/74/09_04_14_gab_complete_open_session_a genda_material_20954.pdf (at 76; p. 79 of PDF) (stating that GAB will be in a better position to develop plan for effective use of state funds to meet voter ID law objectives after Jan. 1, 2015).  10 ECF 61-1, third link at p. 3 (Letter to Legislative Reference Bureau.) Case: 14-2058      Document: 65-1            Filed: 09/16/2014      Pages: 6211  there has been no apparent public information or outreach, and the state “has no money available” for further public outreach.11  Furthermore, it does not appear that DMV staff have been fully and uniformly trained to implement the new procedures.12 DMV has only 92 offices statewide, (Frank, 2014 WL 1775432 at 15); and in 48 counties representing over a quarter of the state‟s population, those offices are open only two days a week for a total of ten hours.13 DMV is simply incapable of processing a substantial number of applications from the 300,000 registered voters without ID. Nor are the new rules a panacea. All voters still have to obtain and produce proof of identity and residency and travel to DMV.14 Voters who do not have birth certificates in their possession must complete a petition form with information relevant to the date and circumstances of birth. This initiates a two-step verification procedure. First, the DMV shall provide the birth information to the department of health services and attempt to obtain verification of the                                                  11 See Marley, supra note 4. 12 A “DMV hotline worker told us they're still getting up to speed with the new procedure and that it just came down yesterday, so clearly, the agency is still working through this.”  “New voter ID law rules cause confusion,” CBS58 News (Sept. 13, 2014, updated  Sept. 14, 2014), viewed 9/14/14 at http://www.cbs58.com/news/local-news/New-voter-ID-law.html ) 13 Todd Milewski, Clock is ticking to get a Wisconsin voter ID before November election, faster in some areas, THE CAP TIMES, http://host.madison.com/news/local/writers/todd-milewski/clock-is-ticking-to-get-a- wisconsin-voter-id-before/article_d1346760-3cf1-11e4-9560-df1946b2278e.html  14 See, e.g., Ann-Elise Henzl, Agencies, Advocates Await Word on How to Help Wisconsin Voters Obtain Photo IDs, MILWAUKEE PUBLIC RADIO, http://wuwm.com/post/agencies-advocates-await-word-how-help-wisconsin-voters- obtain-photo-ids. Case: 14-2058      Document: 65-1            Filed: 09/16/2014      Pages: 6212  information. ECF 61-2 at 8 (Sec. 11 (creating Wis. Adm. Code Trans. 102.15(5m)(2)1.) DMV warns Wisconsin-born voters that the process may take seven business days to complete. Attachment A. In addition, efforts to implement matching procedures involving different database formats routinely experience severe and unexpected problems and delays.15 If that does not verify required information, then DMV must notify the applicant that the applicant needs to provide other documents, and a DMV administrator or his delegate then has discretion to accept alternatives such as hospital records, baptismal certificates, or other such records. Id. at 8-9 (creating Wis. Adm. Code Trans. 102.15(5m)(2)2.)  ECF 61-2 at 8 (Sec. 11 (creating Wis. Adm. Code Trans. 102.15(5m)(2)1.) Moreover, DMV currently has an agreement to verify birth information only with Wisconsin’s vital records office.16 Even though Election Day is now only seven weeks away, GAB has indicated that the verification process could take eight weeks for voters born in other states.17  Indeed, no formal verification system has been set up for these voters. The state represented at oral argument that this process is ongoing, but the state has reportedly done no more than notify other states of its rules.18 DMV itself is telling voters that “for voters born in another                                                  15 See, e.g, Coverage in jeopardy for 40% of HealthCare.gov enrollees, http://www.consumerreports.org/cro/news/2014/06/40-percent-of-healthcare-gov- accounts-in-jeopardy/index.htm (describing database matching problems in implementation of HealthCare.gov). 16 (WI Dept. of Trans. http://www.dot.state.wi.us/news/releases/031- nr20140910.html) 17 See Hall, supra note 4. 18 Ann-Elise Henzl, Voter ID: No Birth Certificate Needed to Apply for Wisconsin ID Case: 14-2058      Document: 65-1            Filed: 09/16/2014      Pages: 6213  state or country, the length of the process will depend upon how long it takes the other government agency to respond to Wisconsin‟s request for information.” Attachment A.  Thus, thousands of Wisconsin voters – especially those born elsewhere – are unlikely to benefit from the new procedures in time to vote. Almost 47% of eligible Milwaukee voters without ID were born outside Wisconsin. (A.187.)  This population is disproportionately comprised of Blacks and Latinos, who are more likely than whites to lack both ID and a document needed to get ID, such as birth certificates, Frank 2014 WL 1775432 at 29-30.19  The fate of voters whose birth records are not verified through this matching process will rest in the hands of front-line DMV employees, who will be charged with deciding when and whether alternative documents are acceptable, a situation that has led to arbitrary and disparate treatment in the past and has not gotten ID to voters. See Frank, 2014 WL 1775432 at 16 n. 18 and n. 20.ECF 61-2 at 8-9 (Wis. Adm. Code Trans. 102.15(5m)(2)2). Cf. Louisiana v. United States, 380 U.S. 145, 153 (1965).  D.  A fundamental change in election procedures just before an election will sow confusion among voters and elections officials.   The panel‟s decision to allow Act 23 to go into effect at this late date virtually
                                                                                                                                                             at DMV Office, http://wuwm.com/post/voter-id-no-birth-certificate-needed-apply- wisconsin-id-dmv-office. 19 See also, Frank 11-CV-01128, 2014 WL 1775432 at 30 n. 37 (“Many Latino voters who were born in Puerto Rico will have trouble obtaining their birth certificates because the Puerto Rican government annulled all birth certificates of individuals born there prior to 2010. . . . 16.7% of eligible Latino[ voters] in Milwaukee County were born in Puerto Rico and 38.4% of those born in Puerto Rico ha[ve] yet to obtain a new birth certificate.”) Case: 14-2058      Document: 65-1            Filed: 09/16/2014      Pages: 6214  guarantees substantial chaos in election administration and resulting voter confusion and disenfranchisement in the November elections. This will be contrary to the public interest, and will undermine voter confidence. The necessary steps to implement Act 23 – which originally contemplated an eight-month implementation period – cannot be completed in time for this fall‟s election cycle.20 See Fr. Ex. 635 at 74 (deposition testimony of former GAB Elections Division head Robinson) (“This is a new sweeping law with a lot of nuances, and for poll workers who do not do this as a matter of their daily jobs . . . the facts that should be known, the basic facts, in fact, are many times not known.”). The GAB will have to figure out how to retrain the 1,852 municipal clerks who run elections in Wisconsin, roughly one-fifth of all the clerks in charge of elections in the nation,21 as well as ensuring immediate retraining of tens of thousands of poll workers. This process is neither easy nor straightforward, see, e.g., Doc. 53-1 at 15, as Act 23 is extremely complex. Clerks and poll workers must learn exactly what forms of ID are acceptable (e.g., only some specialized college IDs, not regular student IDs) and what IDs are not (e.g., Veterans‟ Administration ID), which IDs are valid despite varying permissible expiration dates, and whether and to what extent the name, 20 Act 23‟s photo ID provisions were scheduled to have a “soft implementation” beginning on July 1, 2011, and to not take mandatory effect until the February 2012 low turnout primary. Id., § 144 (2); http://docs.legis.wisconsin.gov/2011/related/acts/23 ; Tr. 908. 21  See, e.g., Jason Stein and Larry Sandler, 1850 municipal clerks another complication, J. SENTINEL, http://www.jsonline.com/news/statepolitics/119373789.html  These clerks also have a 20-25% annual turnover rate, Tr. 889-90, and thus many were never trained on voter ID. Case: 14-2058& Document: 65-1 Filed: 09/16/2014      Pages: 6215  photograph, signature, or address on the ID has to match voter registration data.22

II. ALLOWING THE SAME ELECTION PROCEDURES TO REMAIN IN PLACE FOR ONE MORE ELECTION DOES NOT RESULT IN IRREPARABLE HARM TO THE STATE 

When weighed against such a substantial risk of election official confusion and disenfranchisement, the error of the panel‟s decision is all the more important because of its failure to consider “whether the applicant will be irreparably injured absent a stay.” Nken, 556 U.S. at 434. Other circuits have rejected stay motions when the government has not sustained its burden on this factor. See, e.g., Ohio State Conf. NAACP v. Husted, 2014 WL 4494938, (6th Cir. Sept. 12, 2014) (denying stay where “Defendants did not carry their burden to demonstrate that they will suffer more than a mere „possibility‟ of irreparable harm.”) Id. 

CONCLUSION

It is not too late to avert this impending disaster. GAB Executive Director Kevin Kennedy has stated publicly that his agency would cease efforts to implement this law “if ordered to stop by a court order.”23 For the reasons set forth herein, this Court should so order. Plaintiffs request that this Court reconsider or reconsider en banc its Sept. 12, 2014 ruling and vacate the stay that was issued.

Sep 16, 2014

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 CircuitEasterbrook, Diane Sykes and John Tinderblow this one.

Wisconsin Chaos—Elections Board: Unequal Protection to Carry out Appellate Court Order

Wisconsin Governmental Accountability Board (GAB) on complying with Seventh Circuit panel's September 12 order: Some voters need copies of photo voter ID; some need photo voter ID and some don't need voter photo ID at all.

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

One wonders if the Court of Appeals for the Seventh Circuit has the faintest clue about what is going on in Wisconsin: Chaos and a state elections board (GAB) ordering unequal treatment for different classes of voters in ad hoc rules changing almost daily.

This is what happens when a clueless appellate court changes the rules on the eve of the election.

Amid confusing and variant rules for one class of citizens who are more equal under the Court-ordered voting regime than others, we note we have all heard of Get Out the Vote (GOTV) projects employed by political campaigns.

Now we have Get Out the ID (GOID), and it is employed by municipal clerks, per the Wisconsin Government Accountability Board (GAB), amid the confusing Appellate Court-ordered voting regime. Nice work, Easterbrook, Sykes and Tinder.

Although the clown car quality of the panel-imposed voter ID regime is funny in one sense, Wisconsin Act 23 as applied in this ad hoc system presents very unfunny Equal Protection problems.

Wonder if Judge Frank Easterbrook has the integrity to stay his panel's ludicrous order and conclusion (put on the court's docket at 3:54 p.m. last Friday) 53 days out from Election Day, and made before Easterbrook and his colleagues researched the law and facts of this case and before the panel wrote an opinion.

Maybe Easterbrook is thinking about something else.

Thanks to the U.S. Court of Appeals for the Seventh Circuit panel's order, chaos is the order of the rest of the Wisconsin election.

One class of voter, those 100s who been mailed absentee ballots and sent the ballot back, will now have to present copies of acceptable IDs, whereas the rest of Wisconsin citizens [excepting military and overseas voters who won't need IDs] will have to present real IDs vis a vis copies when they vote in person.

This class of voters followed the rules, and the federal appellate court changed the rules, to the approval of the Republican Party.

Wisconsin Act 23 says nothing about copies of IDs being acceptable.

However, clerks are being urged to actively contact voters and inform them of the new voting rules, rules with which they must comply or be disenfranchised because the rules were changed so late.

"The law is clear that most absentee ballots must be accompanied by a copy of the voter’s ID," said Kevin Kennedy, whose position is not identified on the GAB's Kevin Kennedy's Prepared Remarks on Voter ID for 9-16-2014 News Conference page, so we'll call Kennedy, Executive Director of GOID.

By the way, according to the DMV (implementing Act 23), it may take 14 days for free photo voter ID to be mailed to voters from California, a position Kennedy contradicts when he says, "Voters who do need to can get an ID get a free ID at the Wisconsin DMV office, even if they do not have a birth certificate." Whose right, Kennedy or the DMV?

The DMV phone message advises voters that IDs are not available at the DMV, just the okay for the IDs to mailed from California which may or may not take longer than 14 days. Dial (608) 266-2353 of the Wisconsin DMV, press 3; then navigate the long phone-answering tree, then press one, then listen to this recording: "If you are waiting for a driver license or identification card to arrive through the mail and it has been at least 14 days since you applied, press one now." Not sure what happens then.

Here are Kennedy's remarks:

Let me reiterate what I said on Friday after the court decision came down: We are taking every step to fully implement the voter ID law for the November General Election.

Implementing voter photo ID this close to an election will not be easy, but the G.A.B. and Wisconsin’s clerks are up to the challenge.

This is not the first time local election officials have been called upon to step up and serve the voters in a pinch.  We ask a lot of our local election officials – many of whom are part time—and we appreciate their efforts.

Local election officials and our office will be making extraordinary efforts to ensure that all eligible voters are able to participate in the process and have their ballots counted.

Here is what we’ve done and what we will be doing:

We are training clerks and election workers. 

We have an excellent training staff, and we are leveraging the power of the Internet with webinars and online training videos. 

Clerks and election workers were well trained for 2012, but there has been turnover since then.

We have developed extensive materials for clerks and the public about voter ID which will be posted to our website.

The most pressing problem now is absentee ballots.

The law is clear that most absentee ballots must be accompanied by a copy of the voter’s ID.

We believe several thousand absentee ballots have already been mailed to voters without notification that they must provide a copy of their ID, but we do not have an exact number. 

A few hundred absentee ballots have already been voted and returned to clerks.

On Friday we ordered clerks to stop sending out ballots until we could determine procedures for contacting voters about the need to provide a copy of photo ID.

Today we are providing guidance to clerks about how to deal with these absentee ballots as well as current requests for ballots that have not been mailed.

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.

For current absentee ballot requests that have been received, clerks will have to contact voters and inform them they need to submit a copy of their photo ID before the clerk will mail their ballot.
Going forward, all absentee ballot requests will have to include a copy of the voter’s photo ID, if required. If it is not included, clerks will follow up and inform them they need to submit a copy of their photo ID before the clerk will mail their absentee ballot.

Clerks will have to send voter ID instructions along with absentee ballots. 

The G.A.B. has developed instructions for clerks to use.

Some absentee voters do not need photo IDs.  These include military and overseas voters. 

In Wisconsin, voters who are indefinitely confined due to illness, age, or infirmity do not need to provide a photo ID with their absentee ballot.

These are the challenges we’re facing: Voters need to be reminded of the basics.

Most voters already have the ID they need to vote. 

These include a Wisconsin driver license, state ID, temporary driver license or state ID receipt from the DMV, U.S. passport, military service ID, tribal ID or certificate of naturalization. Most people do not need to get a separate ID card to vote.

Voters who do need to can get an ID get a free ID at the Wisconsin DMV office, even if they do not have a birth certificate.

The address on your ID does not have to match the address on the poll list.

Your name on your ID does not have to match the poll list exactly.  For example, James works for Jim, Katherine for Katie, etc.  If one has your middle name and the other has your middle initial, that’s OK too.

After Fourteen Days by Mail, Complain When You Cannot Vote in Wisconsin

Update: ACLU-Wisconsin and The Advancement Project announce filing for an en banc (full court) appellate hearing to "protect the voting rights of Wisconsin citizens" amid massive confusion.
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Dial (608) 266-2353 of the Wisconsin DMV, press 3; then long phone-answering tree, then this recording: "If you are waiting for a driver license or identification card to arrive through the mail and it has been at least 14 days since you applied, press one now."

Fourteen days.

That means you have 21 legal days (assuming Jewish Holidays and Halloween are not legal holidays, fair assumption) left before Election Day to get a free a Wisconsin Photo Voter ID mailed to you from California.

Twenty-one days for some 300,000 residents.

Sounds like an undue burden when only one DMV office is open on weekends, and most DMV centers are part-time. According to an amicus brief filed by One Wisconsin Now (in a state case):
41 [DMVs] are open just two days each week, seven are open just a few hours for one day each month, and three are open just one day every quarter.… Only one DMV service center in the entire state of Wisconsin is open on a Saturday. No other DMV in the entire state operates in the evenings or on weekends ...

 If the 330,000 electors [without ID] attempted to obtain their ID during the one-month period preceding the election, the DMV would need to process on average 37 eligible electors each hour, every day of operation for the entire month. (cited by Berman)
Today, Wisconsin's Government Accountability Board (GAB) will meet with reporters discuss how they will implement the state's voter I.D. law.

Don't look for a GAB statement saying this is an undue burden and that eligible voters will be disenfranchised. Attorney Mike Haas may be a nice guy but he suffers from spaghetti spine, not a great condition for the Elections Division Administrator of the GAB.

We need an emergency appeal to the U.S. Supreme Court from lawyers with a belly, and a spine.

You see if I were in Mr. Haas' position I would issue a public statement that Scott Walker and the Republican Party are trying to stop eligible Wisconsin citizens from voting aided by an oppressive Republican-appointed federal judges who (still seems incredible) order Voter ID reinstated with just 23 legal days to go, 21 now and counting down.

Sep 15, 2014

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 90 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.

Electoral Chaos in Wisconsin Begins

Update: New York Times: Rick Hasen: "It is hard enough to administer an election with set rules — much less to change the rules midstream."
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The ruling by the Court of Appeals for the Seventh Circuit has election clerks and the Wisconsin GAB wondering what to do now that the Court has seen it fit to change the rules on the eve of the election and carry out the GOP objective: Chaos and voter obstruction.

Almost 12,000 absentee ballots have already been mailed out.

The Wisconsin Government Accountability Board (GAB) notes there is one set of rules for some voters and another set for other voters:

"Absentee ballots that are mailed will need to include uniform instructions depending upon the type of voter which incorporate directions about the photo ID requirement.  For that reason, municipalities are directed not to mail out any additional absentee ballots until the G.A.B. issues those uniform instructions which will occur as soon as possible."

Military and permanent overseas voters are exempt from the photo ID requirement."

The GAB also notes: "The Government Accountability Board will communicate additional guidance to local election officials next (this) week, which will include instructions regarding the processing of absentee ballots which have already been issued."

This means apparently that different sets of ballots are processed under different rules.

Some voters will have to follow the law, others will not.

Rick Hasen notes:

Friday’s 7th Circuit order was the height of irresponsibility which did not even bother to consider or mention the difficulty of rolling out voter id when the voting process had already started. 

Someone wise once said: “Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” Oh yeah, it was the U.S. Supreme Court. Why didn’t the Seventh Circuit listen?

Elsewhere, Ari Berman points out Wisconsin features a unique set of facts and arguments in light of Crawford v. Marion County, which is supposed to be a content and state-specific ruling, suggesting an emergency hearing by the U.S. Supreme Court or the Court of Appeals and soon.

Sep 13, 2014

Willful Ignorance, Complexity and Corruption in Wisconsin Voter ID Ruling

One wonders since the new DMV service center policy is cited in Ruthelle Frank v. Scott Walker (14-2058), as is the Milwaukee Branch of NAACP v. Walker ruling, does the record also include One Wisconsin Now's Amicus Curiae Brief detailing how "Obtaining a State-Issued ID Is Difficult, Inconvenient, Impracticable, and –For Some –Insurmountable," and the lack of "Wisconsin’s DMV Inaccessibility Creates A Voter Access Issue."
 
The brief is worth checking out and certainly should be included in an emergency appeal and should be a topic of federal court deliberation.
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Judge Richard Posner of the Court of Appeals for the Seventh Circuit is the author of the Crawford v. Marion County Election Board  opinion (2007) [one year later came a U.S. Supreme Court confused landmark case with a plurality opinion authored by Justice Stevens (since retracted) from which the order from the Seventh Circuit's panel used to justify its extraordinary ruling changing the Wisconsin voting landscape some 50 days out from Election Day.]

It is appropriate that Judge Posner, a leading public intellectual and legal scholar, notes in his Reflections on Judging (Harvard University Press. 2013) that the educational background of fellow Justices and judges reflects the belief that law is a humanity rather than a science or at least a social science. (p. 81)

Posner, appointed to the bench in 1981, has turned into the conscience of the Seventh Circuit, and conscience and fidelity to the principles animating the dispassionate and fair deliberation of the law is missing from Frank v. Walker and its companion case.

"We are very disappointed in the damaging decision to lift the injunction against [Wisconsin] Voter ID, which will cause chaos and disruption for voters and elections workers for the November election.  The state has not demonstrated it is prepared to make this new ID scheme work.  The new procedures were presented at the last second and it is unclear whether or how they will work in time to ensure that eligible voters are actually able to vote. It has not demonstrated how it will train 1,852 municipal clerks and tens of thousands of poll workers, as well as notifying voters of the new rules. We will continue to review and closely monitor this decision," writes Chris Ahmuty, ACLU of Wisconsin Executive Director.

Wisconsin's Act 23 is one of the most restrictive Republican-authored voter obstruction state laws exceeded perhaps only by Texas and North Carolina, all three of which are intended to block as many disfavored citizens as possible from casting votes, with an emphasis on ethnic minorities, most of whom in Wisconsin reside in one county.

Clayton Kawski, an assistant Wisconsin attorney general, sounded more like a politician of the likes of Scott Walker and the odious Rep. James Sensenbrenner (R-White People) than a jurist in oral arguments, using the GOP catch phrase "common sense" numerous times to justify the constitutionality of this clearly unconstitutional law, (Davey, NYT) even citing for the panel the perceived popularity of Act 23 as a polling data point.

"The district court [Judge Lynn Adelman] held the state law invalid, and enjoined its implementation, even though it is materially identical to Indiana’s photo ID statute, which the Supreme Court held valid in Crawford v. Marion County Election Board, 553 U.S. 181 (2008)," reads yesterday's appellate order.

Materially identical?

This is ironic language to use for the Wisconsin law vis a vis Indiana's.

Last year in U.S. district court Wisconsin featured a long trial at which was presented a mountain of testimony and social scientific evidence demonstrating that Wisconsin's photo voter ID law would disenfranchise potentially 100,000s, while also demonstrating that only one case of voter impersonation voter fraud occurred out of 10s of Millions of votes cast going back to 2004.

No such trial took place in Indiana in 2007-08, yet the appellate panel finds as fact that the two state laws are materially identical; based on what evidence, what examination, what trial?

Judge Posner commenting on the challenge of complexity in federal litigation notes that a careful examination of evidence is imperative if the rights of citizens under law are to be realized by a judiciary that often misses the mark.

"I plead guilty to having written the majority opinion (affirmed by the Supreme Court) upholding Indiana's requirement that prospective voters prove their identity with a photo id—a law now widely regarded as a means of voter suppression rather than fraud prevention." (pp. 84–85)

Notes Posner, "Consider what judges do when they don't understand the activity from which a case before them has arisen. They duck, bluff, weave, change the subject." (pp 85-86)

This is precisely what the appellate panel has done, writing: "After the district court’s decision, the Supreme Court of Wisconsin revised the procedures to make it easier for persons who have difficulty affording any fees to obtain the birth certificates or other documentation needed under the law, or to have the need for documentation waived. Milwaukee Branch of NAACP v. Walker, 2014 WI 98 (July 31, 2014). This reduces the likelihood of irreparable injury, and it also changes the balance of equities and thus the propriety of federal injunctive relief. The panel has concluded that the state’s probability of success on the merits of this appeal is sufficiently great that the state should be allowed to implement its law, pending further order of this court."

Actually, the new policy is not in effect until Monday and the sophistication of DMV clerk, the dearth of DMV centers in Wisconsin and the ability to travel to DMV centers are of no apparent concern to Easterbrook, Sykes and Tinder.

Acting as an obtuse judiciary, Judges Easterbrook, Sykes and Tinder are at best willfully ignorant:

Notes Judge Adelman in his April 2014 opinion that is meticulously crafted:

"Although it is true that those individuals who already have IDs must have at one time experienced the burdens and inconveniences of obtaining them (and must continue to experience the burdens and inconveniences of keeping their IDs valid), the photo ID requirement creates a unique barrier for those who would not obtain a photo ID but for Act 23." (pp 22-23)

The three judges are redolent of George W. Bush during Hurricane Katrina:

'Why don't you just hop in the SUV and take your family and make sure everyone has their IDs in order and the DMV will help you now' echoes George W. Bush's inability to understand why families didn't evacuate when the approach of Katrina gave them days warning in 2005. [In a historical irony, Bush's perceived indifference to African Americans led Karl Rove to push Congress into a 25-year extension of the Voting Rights Act, which proving too beneficial to African Americans and Latinos' voting so it had to be gutted by the GOP judiciary on the U.S. Supreme Court.]

The socioeconomic reality and the new precondition to vote imposed by Act 23 escapes Easterbrook, Sykes and Tinder who can only see a similarity in the text of state laws, but remain oblivious to the reality of the livesthough presented in the record with a huge body of evidence whom the law serves.

I have to believe Easterbrook is willfully ignorant and Sykes and Tinder are corrupt.

In the Easterbrook-Sykes-Tinder order, the panel cites Milwaukee Branch of NAACP v. Walker, 2014 WI 98 (July 31, 2014).

It is worth noting that "... Wisconsin will still have only one DMV location that is open during the weekend, on Madison's west side. By comparison, Indiana has 124 DMV centers that are open during the weekend." (Roller, Milwaukee Journal-Sentinel)

One wonders since the new DMV service center policy is cited; as is the Milwaukee Branch of NAACP v. Walker ruling, does the record also include One Wisconsin Now's Amicus Curiae Brief detailing how "Obtaining a State-Issued ID Is Difficult, Inconvenient, Impracticable, and –For Some –Insurmountable." and the lack of "Wisconsin’s DMV Inaccessibility Creates A Voter Access Issue."

The brief is worth checking out and certainly should be included in an emergency appeal and should be a topic of federal court deliberation.

Sep 12, 2014

Seventh Circuit Reinstates Wisconsin's Photo Voter ID Law 53 Days from Election Day

Massive Mobilization Required to Offset This Incredible Ruling - Needed Now: Mass Applications for Your Municipality's Special Registration Deputy Appointment

Updated - Scott Walker is trying to steal this election, and Republicans on the judiciary are happy to help.

A three-judge panel has stayed the federal court injunction against mandatory photo voter ID in Wisconsin, reinstating the photo voter ID law in a spectacular ruling.

"The State of Wisconsin may, if it wishes (and if it is appropriate under rules of state law), enforce the photo ID requirement in this November's elections. The appeals remain under advisement, and an opinion on the merits will issue in due course," the three Republican-appointed judges ordered.

Republicans do so wish.

Reports the Milwaukee Journal-Sentinel (Marley and Stein):

The appellate court said Friday that it was satisfied by changes imposed on the law by the Wisconsin Supreme Court in a separate decision earlier this year.
"This reduces the likelihood of irreparable injury, and it also changes the balance of equities and thus the propriety of federal injunctive relief. The panel has concluded that the state's probability of success on the merits of this appeal is sufficiently great that the state should be allowed to implement its law, pending further order of this court," the order reads.
The head of the state's election agency said Friday he would do everything possible to get the law back in place in time for the election — something agency officials previously said would be a challenge.

Hundreds of thousands of Wisconsin citizens do not have a photo voter ID, and the ruling will result in a sprint to the local DMV to obtain an ID.

Huge lines will also likely be a consequence of the ruling, due to Scott Walker and the GOP's shortening of the early voting period.

Politically, the judicial ruling is an active (dynamic) and not a static development, meaning the voter obstruction intent of Wisconsin Act 23 will likely produce a reaction among targeted demographics of the GOP, including minorities, college students, disaffected veterans, the elderly and the homeless.

Confusion, long lines and frustration will be hallmarks of the November 4 Election Day, objective achieved by Scott Walker and the Republican Party.
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United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604  
September 12, 2014  
Before 
FRANK H. EASTERBROOK, Circuit Judge 
DIANE S. SYKES, Circuit Judge 
JOHN DANIEL TINDER, Circuit Judge    
Nos. 14-2058 and 14-2059 
RUTHELLE FRANK, et al.,  Plaintiffs-Appellees, 
  v. 
SCOTT WALKER, in his official capacity as Governor of State of Wisconsin, et al.,  Defendants-Appellants.
Appeals from the United States District Court for the Eastern District of Wisconsin. 
Nos. 11-CV-01128 and 12-CV-00185 Lynn Adelman, Judge.  
LEAGUE OF UNITED LATIN AMERICAN CITIZENS OF WISCONSIN, et al.,  Plaintiffs-Appellees, 
  v. 
DAVID G. DEININGER, et al.,  Defendants-Appellants.     
Case: 14-2059      Document: 65            Filed: 09/12/2014      Pages: 2
Nos. 14-2058 and 14-2059  Page 2   
Order 
 On August 21, 2014, this court issued an order providing that the motion for a stay would be considered by the panel assigned to decide the case on the merits. This order further provided that the state was free, in the interim, to implement the changes to the procedures for obtaining (or excusing reliance on) birth certificates, and similar documents, that the Supreme Court of Wisconsin adopted in Milwaukee Branch of NAACP v. Walker, 2014 WI 98 (July 31, 2014). 

 Having read the briefs and heard oral argument, this court now stays the injunction issued by the district court. The State of Wisconsin may, if it wishes (and if it is appropriate under rules of state law), enforce the photo ID requirement in this November’s elections. 

 The district court held the state law invalid, and enjoined its implementation, even though it is materially identical to Indiana’s photo ID statute, which the Supreme Court held valid in Crawford v. Marion County Election Board, 553 U.S. 181 (2008). It did this 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. 

After the district court’s decision, the Supreme Court of Wisconsin revised the procedures to make it easier for persons who have difficulty affording any fees to obtain the birth certificates or other documentation needed under the law, or to have the need for documentation waived. Milwaukee Branch of NAACP v. Walker, 2014 WI 98 (July 31, 2014). This reduces the likelihood of irreparable injury, and it also changes the balance of equities and thus the propriety of federal injunctive relief. The panel has concluded that the state’s probability of success on the merits of this appeal is sufficiently great that the state should be allowed to implement its law, pending further order of this court. 

 The appeals remain under advisement, and an opinion on the merits will issue in due course.

Voter ID Makes It Easier to Vote, Says Wisconsin DoJ Atty

"(Requiring photo voter ID) will make it easier to vote," said Wisconsin Department of Justice (DOJ) Assistant Attorney General Clayton Kawski during oral arguments today (14-2058; Ruthelle Frank v. Scott Walker).

This is an absurd statement and is representative of the nature of the argumentation from the voter obstruction party with Scott Walker and Wisconsin Atty General J.B. Van Hollen at the helm in Wisconsin.

As a veteran election inspector who worked the low turn-out affair in February 2012 Spring primary in the one election when photo voter ID was used in Wisconsin (no statewide election were held that day), I can attest that some two to three minutes are added to the voting process for each voter, a time unit that is increased exponentially during high turn-out elections when there will be long lines.

Each voter's extra time is added to the voters' waiting in line in high turnout affairs.

As for a single voter operating under a photo voter ID law, each voter reports to the voter roll's table, states her name and address and then presents her ID.

The ID is then checked by two election inspectors both of whom check names, dates, photo resemblance, check against acceptable photo IDs, hands back the ID before handing a voter number and sending the voter to the ballot table to pick up a ballot.

This is a substantial delay, and would make for lines resembling Florida and Ohio.

Panel Hears Scott Walker's Desperate Plea to Reinstate Voter ID 53 Days Before Election Day

Seventh Circuit Reinstates Wisconsin's Photo Voter ID Law 53 Days from Election Day

Update: Oral arguments are up online; 14-2058  Ruthelle Frank v. Scott Walker.

Questioning the wisdom and practicality of lifting Judge Lynn Adelman's permanent injunction of  Wisconsin's restrictive Photo Voter ID law (Act 23) a three-judge appellate panel has left uncertainty over whether the law will be in force during the coming November election in 53 days.

After some analysis, mal contends asserts lifting Judge Adelman's injunction would be an outrage for an appellate circuit that prides itself on scholarly opinions, so one can rest easy. Look for a quick decision denying Scott Walker's attempt to shrink the Wisconsin electorate.

The Court of Appeals for the Seventh Circuit is not the Wisconsin Supreme Court, a discredited institution with about the same creditability as the Wisconsin State Assembly.

The case, Walker v. Frank (consolidated with a case bought by the Wisconsin chapter of the League of United Latin American Citizens) was heard this morning by a three-judge panel of the Court of Appeals for the Seventh Circuit.

Oral arguments will be available online this afternoon at the Court's site.

The three judges hearing the case today are Judges Frank Easterbrook, Diane Sykes (rightwing activist appointed by W. Bush) and John Tinder (rightwing activist appointed by W. Bush).

Judge Dianne Sykes questioning the voting rights attorney, John Ulin, opined that the voters had won a "whooper" of a remedy in Adelman's injunction, reports Patrick Marley of Milwaukee Journal Sentinel.

Sykes also noted the Dept of Justice attorney was asking for lifting a stay on the "eve of an election."

At a federal trial last year, Judge Adelman found zero cases of voter impersonation (a finding of fact admitted by the Dept of Justice attorney at trial) and a mountain of social scientific evidence that as many 300,000 eligible and registered Wisconsin voters could lose their right to vote should Wisconsin's Act 23 be given the green light and Adelman's injunction be stayed during further adjudication in federal court.

"He took evidence and found the Supreme Court was wrong," Easterbrook said referring to the Crawford vs. Marion County Elections Board case (2008).

Easterbrook is likely pointing out that vis a vis Crawford, Walker v. Frank (and the consolidated case) feature a mountain of social scientific evidence presented at trial and on the record.

As attorney Earnest Canning notes this May in the Brad Blog: Crawford used the "Anderson/Burdick test, which requires the courts, on a case-by-case basis, to measure a law's potential damage to voters' right to vote, against the specific claims made by the state as to why such additional burdens and restrictions are necessary."

Applied to the Wisconsin voter ID law, it was established at trial that zero cases of impersonation voter fraud exists versus 100,000s of eligible Wisconsin voters losing their franchise to vote under Act 23.

This would certainly suggest a likelihood of success for voting rights advocates in further federal litigation and point for maintaining the injunction.

Canning notes, "As Judge Adelman observed, Crawford lacked a 'majority opinion'" --- that is an opinion in which five Justices agreed on the reasons for the decision. Instead, there were four separate opinions: a lead opinion written by Justice John Paul Stevens (joined by Chief Justice Roberts and Justice Kennedy), a concurring opinion written by Justice Antonin Scalia (joined by Justices Thomas and Alito), a dissenting opinion written by Justice David Souter (joined by Justice Ginsburg) and a separate dissent by Justice Breyer."

Justice Stevens writes that Crawford is "is state-specific and record-specific."

Judge Adelman writes the state interest in detecting and deterring alleged voter fraud is vanishingly small "because virtually no voter impersonation occurs in Wisconsin and it is exceedingly unlikely that voter impersonation will become a problem in Wisconsin in the foreseeable future, this particular state interest has very little weight." (p.11)

To get an idea of how restrictive Wisconsin's Act 23 is, consider that a Wisconsin polling worker (election inspector) who wears a photo ID issued by the municipality for whom she works would not be able to cast a vote under Act 23 if she showed up for work without further identification.

Wisconsin Act 23 was passed with exclusive Republican support and signed into law in 2011 as a voter obstruction measure that would add some two to three minutes to each voter's reporting to the voter roll's table, stating her name and address and then presenting her ID.

The ID is then checked by two election inspectors who check dates, photo resemblance, check against acceptable photo IDs before handing a voter number and sending the voter to the ballot table to pick up a ballot.

In a high turnout election such as this coming general election, the lines would be vastly increased and polling places will be understaffed, as rightwing voter observers stood three feet behind the voting rolls' tables and loudly voiced opinions. [The latter will happen.]

Confusion, frustration and obstruction remain Republican objectives.

Voter ID in Wisconsin likely will be one objective unmet.

Scott Walker Back at Appellate Court Asking for Photo ID Law Okay; Panel Includes Two Rightwing Judicial Activists

Update III: Oral arguments are up online; 14-2058  Ruthelle Frank v. Scott Walker.

Three-judge Appellate Panel Includes Two Rightwing Activist Judges

Update II: Orals online this afternoon on Court site. (14-2058, 14-2059)

Update - Rick Hasen points out that two of the panel voted for Crawford in a highly qualified FYI.

A desperate Scott Walker administration is back in federal appellate court asking a judicial panel to halt (stay) U.S. District Judge Lynn Adelman's permanent injunction against Wisconsin's Voter Law which remains unenforceable under a federal court order.

The cases to argued are Ruthelle Frank v. Scott Walker and LULAC v. Deininger (14-2058, 14-2059) consolidated for appeal with the Court of Appeals for the Seventh Circuit.

The panel hearing the cases is composed of Judges Frank Easterbrook, Diane Sykes (rightwing activist appointed by W. Bush). and John Tinder (rightwing activist appointed by W. Bush).

Walker filed for an expedited motion on August 5 to stay Judge Adelman's ruling, hoping that the photo voter ID law could be put into place to obstruct non-GOP-voting segments of the Wisconsin population for the November general election.

"The court will reserve decision on appellantʹs (Scott Walker and Wisconsin Attorney General J.B. Van Hollen (R)) motion to stay the permanent injunction until after oral argument on September 12, 2014," announced the appellate court on August 21.

Walker's attorneys working today to implement the GOP-passed photo voter ID law in the face of no evidence of photo impersonation and a mountain of evidence presented at federal trial last year demonstrating potentially 100,000s of Wisconsin citizens would be deprived of their right to vote is incredible and brash just 53 days out from Election Day.

The August 21 order also stated the Walker administration is free to implement the portion of the Wisconsin Supreme Court's vague order that the state DMV exercise discretion for persons who cannot afford the often substantial costs of obtaining birth certificates and other documents.

It would be extraordinary for the panel to stay Judge Adelman's injunction under two months before Election Day but Walker and Wisconsin Republicans bid for a long-shot ruling after implementing the discretionary cost-free order for supporting documentation to obtain free photo voter IDs has some pro-voting rights activists nervous.

Sep 11, 2014

Wisconsin Voter Obstruction Operative Sought and Received Scott Walker's Advice

Scott Walker and the party of voter obstruction are still doing their worst to deter the wrong kind of voters, especially voting while black.

More evidence from a story breaking of Scott Walker's dedication to the GOP's anti-voting project, as pro-voting advocates still play a defensive, reactive game.

Report Dan Bice and Bill Glauber in the Milwaukee Journal-Sentinel:

A venture fund manager consulted with then-Milwaukee County Executive Scott Walker about state and federal voting laws in 2010, just weeks before the businessman began posting controversial ads on billboards in Milwaukee that warned "Voter Fraud is a Felony."

"Scott, I need to know the rules for illegal voting in Wisconsin," Stephen Einhorn wrote in an email on July 22, 2010. "Please check into the rules, including federal statutes. I need to know what the law is, if you violate it."

Einhorn continued, "I need this for some work that I am doing, and would appreciate your prompt response."

Walker forwarded the email to Cheryl Berdan, an assistant administrator in his office with the instructions, "Please help him out."

Until voting rights advocates, and this includes the Democratic Party, launch an offensive for voting rights, assholes like Stephen Einhorn and Scott Walker feel politically empowered to obstruct voting.

Today, Republicans know well that the higher the turnout, the lower the probability Scott Walker has of salvaging his shameful administration in November.

Scott Walker Should Be Subject of Contempt Hearing for Defying Judge Adelman's NO VOTER ID Order

Intent and Effect of the Blocked GOP Photo Voter ID Law Is to Obstruct, Confuse and Discourage People from Voting

No Voter IDs are needed in Wisconsin for any election as U.S. District Judge Lynn Adelman's order remains in effect.

Judge Adelman could not have been clearer, writing: "IT IS ORDERED that the named Defendants and Defendants’ officers, agents, servants, employees, and attorneys, and all those acting in concert or participation with them, or having actual or implicit knowledge of this Order by personal service or otherwise, are here by permanently enjoined from conditioning a person’s access to a ballot, either in-person or absentee, on that person’s presenting a form of photo identification." (p.70; emphasis in original)

But Scott Walker and the Republican Party's voter obstruction campaign continues, and yesterday Scott Walker pretended Judge Adelman's order and opinion of April 29, 2014 does not exist.

Scott Walker's office released a statement yesterday reading in part the "DMV is additionally offering to verify underlying documents, free of charge, to make sure everyone who wants an ID for the purpose of voting, is able to get one," (emphasis added) a transparently misleading press release, masquerading as a new policy in compliance with the Wisconsin Supreme Court's corrupt ruling on Act 23.

Walker did not mention that the photo voter ID law remains enjoined by Judge Adelman and no ID is needed for registered voters to cast a vote in Wisconsin.

A contempt hearing should be requested on the basis that a willfully misleading official communication from the Wisconsin Office of the Governor has the clear intent and effect of misleading and confusing Wisconsin citizens on the status of Act 23, per Adelman's injunction.

Is a misleading communication suggesting a person’s access for the purpose of voting is conditioned by presenting a form of Photo Voter ID contumacious of Judge Adelman's order?

An attorney can at the least make a good argument that this official communication by Scott Walker is contumacious and request a hearing.

Voting rights advocates need to get on the offense, a press release won't cut it.

Scott Walker is playing games and daring Adelman to act.

Writes Andrea Kaminski of the League of Women Voters of Wisconsin:

Statements by Governor Walker and other proponents of the ID law about a new process for obtaining an ID – which is not needed under the injunction – are misleading for a number of reasons. First, they neglect to say that the law is still blocked. Secondly, the statements claim that the photo ID law only hurts a few individuals, when strong evidence was presented in the courts showing that some 300,000 currently registered voters in our state do not possess an acceptable photo ID card, were the law in effect.

Finally, anyone who would suggest implementing voter ID at this late date before an election must have it out for election officials and voters alike. Implementation would affect absentee voting, and municipal clerks are already preparing to send out absentee ballots. They would have to amend the instructions and establish new procedures for processing the ballots. They do not have time in these busy final weeks to retrain their poll workers and educate voters.

The announcement of new procedures for obtaining an ID -- which is unneeded under the injunction – shows that the true intent of this law is not to improve elections but rather to cause confusion and discourage people from voting.