Scale of Voting Obstruction Project Is Not Acknowledged

Consider Wisconsin election law and the failure and refusal of elected representatives, bureaucrats, corporate press and most of the judiciary to note the intent behind unconstitutional voter obstruction, beyond passing comment. The voting rights community is small and its prospects are not heartening.

On the racist, voter obstructionist side, we have Wisconsin Republicans.

Wisconsin Republicans, and only Republicans, crafted the transformation of Wisconsin election law since they assumed elected office in 2011. This is a fact of Wisconsin public policy, and is noted in the July 2016 opinion in the voting rights case, One Wisconsin Institute v. Thomsen (U.S. District Court of the Western District of Wisconsin (Case 15-cv-324)). (Worth noting, as well, is Judge James T. Peterson's silly and polemical characterization of Republican-enacted election law changes as "election reforms." [See page 8. "Since [2011], Wisconsin has implemented a series of election reforms. These laws covered almost every aspect of voting: registration, absentee voting, photo identification, and election-day mechanics." What's Peterson going to do later when the Republican-enacted photo voter ID is further litigated, adopt the Republican Hans von Spakovsky, and John Fund's talking point, 'Easy to vote, hard to cheat,' as his own? (Mal Contends) (Mal Contends).])

Peterson's bending over to find no fault with Wisconsin Republican motives in his One Wisconsin opinion, [Peterson found some fault], ignores both the intent and the effect of Republicans' work to block voters. Republicans stopped 10,000s of voters living in the black sectors of Milwaukee from voting so mission accomplished in election 2016, but with not enough help from Peterson protecting voters.

Effect of Republican Voter Obstruction Laws

Election law scholars, Lawrence Tribe, Ned Foley, Rich Hasan and Chris Carson, weigh in on the question of obstruction effect on voters this week.

A citizen's right and ability to vote is worth considering under the assumption that the political appointees, federal judges like Peterson, are political animals, and upon assumption to the bench do not suddenly become dispassionate Constitutional geniuses. Federal judges most often can be best understand as politicians in robes, and as such write opinions that are politic. Broadly so legal-political commentary and analysis written by politicians have he same defect.

Very rarely will readers find in the judiciary or the academy a finding of fact that Wisconsin Republicans for example, and only Republicans, craft law after law to obstruct the vote, and use new election laws to administer elections in an unconstitutional fashion.

I've yet to find widespread note that Wisconsin Republicans' legislative objective is to frustrate, aggravate, and obstruct as many minority, young and disabled voters as possible in an effort to suppress the total vote in favor of the Republican Party, (Mal Contends).

It should not be surprising that Lawrence Tribe's comment on voter obstruction has been met with widespread hostile commentary. Tribe writes, "Call it what you like, but the # of voters turned away for not having required forms of ID exceeded margin of T’s victory in MI, Pa and Wis."

It takes a major social-scientific investigation to quantify the phenomenon of voter obstruction, because protecting voting just is not in the cards of American political culture. But Tribe is certainly correct from data in the Milwaukee black and brown areas alone.

Wisconsin Republicans have since 2011 worked to transform every corner of government into Republican operations, (Mal Contends) (Mal Contends).

One of the first Republican-enacted changes to with respect to the adminstration of Wisconsin election law was the Republicans' concerted effort in 2011 to staff 3,500 polling places with Republican partisans, to further the objective of obstructing the vote of undesirables.

The lack of acknowledgement and challenge to this Republican attack on the foundation of American democracy should send chills through the political world. I don't believe this is the case, and we should all thank Lawrence Tribe and Chris Carson for noting the scale of the Republican voting obstruction project.

Who are the Republicans staffing your local polling place? Ask your local municipal clerk to find out. Tape record the conversation, the recording may come in handy.

In the meantime, check out the conversation in Ned Foley and Rich Hasan's sites. A great conversation, but one which omits the prospects for voting for 10,000s of black and brown Americans.

Scholars See Strong Case Wisconsin Voter ID Law Will Be Halted Before Election Day

Reading Prof. Ned Foley's piece this morning on the Due Process Clause questions presented by the Court of Appeals for the Seventh Circuit's stay of Judge Lynn Adelman's April injunction (April 29, 2014) of Wisconsin's Photo Voter ID law, in Foley's text appeared a eureka moment.

The Seventh Circuit's panel's changing the rules on Sept. 12 after 1,000s of residents had already cast their absentee ballots raises "severe due process claims," Foley said this afternoon reached by phone.

Writes Foley in his article: "The Due Process Clause of the Fourteenth Amendment has been properly interpreted to bar changes in the rules for counting ballots after they have been cast."

Here's a section of Foley's piece (brought to wide attention by Rick Hasen) that brings to the fore Due Process Clause concerns; writes Foley:

There is one more crucial point about the Wisconsin case that has not yet been fully developed. As a factual matter, the emergency stay application observes that absentee ballots have been already been cast based on a rule in place (per the April injunction (by Judge Adelman)) that the new voter ID requirement did not apply.  The Seventh Circuit’s reinstatement of the ID requirement now makes those absentee ballots void and uncountable unless the voters come forth with the required ID—a requirement not in effect at the time when they cast those ballots.  Indeed, the instructions that these absentee voters received with their ballot did not alert them to the need to provide the required ID.  The stay application says that to disenfranchise these absentee voters “after the fact” based on a change in the rules since they cast those ballots would be “unconscionable” (page 14)—unconscionability being a potent "equitable" factor.

But it would be more than unconscionable.  It would be unconstitutional.  The Due Process Clause of the Fourteenth Amendment has been properly interpreted to bar changes in the rules for counting ballots after they have been cast.

The Emergency petition filed this morning to the U.S. Supreme Court did not specifically, to Foley's eye, contain a "citation to these Due Process precedents [Foley mentioned] in the Wisconsin emergency stay application, or an explicit reference to Due Process or the Constitution."

But in Emergency petitions, or "applications" (see A Reporter's Guide to Applications Pending Before the Supreme Court of the United States), Foley said, there is much "flexibility" the U.S. Supreme Court justices have "especially in an emergency petition."

Moreover, said Foley, "the court could research on its own" federal precedents that would bring to the attention of the justice(s) Due Process Clause rights retained by litigants. This is the Supreme Court after all.

Justice Elena Kagan, the justice assigned to the Seventh Circuit, may act on her own; or bring the application to the full Court for consideration, unlikely since Wisconsin's Election Day is some 30 days away on November 4.

Prof. Foley would not speculate but added among the possible outcomes are that Justice Kagan could partially vacate the stay, or vacate the stay entirely bringing our election back to the status quo before the Seventh Circuit's infamous Sept. 12 ruling, a ruling with opinions that have been described as "disingenuous" by Rick Hasen, a respected election law expert.

This afternoon, Justice Kagan ordered Wisconsin represented by Attorney General J.B. Van Hollen to respond to the Emergency application by October 7, 5:00 pm. That's 28 days before Election Day.

Here is the U.S. Supreme Court docket for the application.

Concludes Foley in his piece:

The affected Wisconsin absentee voters cast their ballots with one set of rules in force at the time. These voters had a reasonable expectation that their ballots would count as cast if they complied with those rules then in force.  To change the rules for counting ballots after they have been cast seems to be one of the most dangerous practices in the administration of an electoral democracy—which is precisely why such a rule-change has been held to violate Due Process.

But an even stronger reason to vacate the stay granted by the Seventh Circuit is that this stay, given the specific facts applicable to the absentee voters, would itself violate the Due Process principle articulated in Griffin v. Burns (570 F.2d 1065 (1st Cir. 1978)) and similar cases.

Writes Rick Hasen today: "C’mon folks. This should be a no brainer. You don’t impose new requirements in the weeks before an election without adequate preparation which runs the serious risk of disenfranchising voters. If the Supreme Court doesn’t recognize that, we are in even worse shape than I thought."

The consolidated cases, (Frank v. Walker, and League of United Latin American Citizens of Wisconsin v. Deininger) have not been heard on their merits in federal appellate court, but Justice Kagan's vacating the stay would preserve the votes of potentially 100,000s of Wisconsin voters this November.

After that, litigation would proceed through the federal court system is an orderly and one hopes not a disingenuous manner.