Showing posts with label Republican Voter Obstruction Wisconsin. Show all posts
Showing posts with label Republican Voter Obstruction Wisconsin. Show all posts

Nov 6, 2014

No Mandate for Scott Walker

When President Obama won 52 percent (to 45 percent for Romney) of Wisconsin voters in 2012 with a 73 percent turnout (Washington Post), Republicans complained about the surprising "urban" vote.

Urban means black in Republican lexicon, hence Obama garnered no mandate.

In 2014, Scott Walker has discerned a mandate from the fact that he won 52 percent of the 57 percent turnout of voters, or roughly 28.5 of the Wisconsin electorate (compared to Obama's 36 percent).

Moreover, that Wisconsin Republicans kept their majorities in the gerrymandered legislative districts demands Scott Walker be "even more aggressive" (Spicuzza, Wisconsin State Journal) in pursuing an agenda that 72 percent of the Wisconsin electorate rejected.

This is more than spin from Walker. This is a continuation of the con game that Walker is running on Wisconsin, backed by a corrupt U.S. District judge (Rudolph Randa) who never learned (or doesn't care) what abuse of discretion means.

It is also more confirmation that most people think government is run in the interests of a few, anti-social special interests who want to rig democracy.

Scott Walker doesn't believe he has a mandate any more than he thinks he could mount a credible run for president.

What he can do is run Wisconsin into the ground in the service of special interests, and leave behind a polluted environment and a diminished public education system, among other targets of the GOP's sociopathic wrecking ball.

Oct 16, 2014

GOP Dirty Tricks Is the Only Way Forward for Scott Walker

Have not read am empirical study but asserting corrupt public officials tend to ally themselves with political groups employing dishonest, illegal and dirty trick seems a truism.

Coming off legal defeats obstructing disfavored citizens from voting, the Republican Party of Wisconsin that used the now-blocked voter ID law as "a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government," the prediction that dirty tricks including harassment and interference with a voters' effort to vote are coming is the safest bet in politics.

John Peterson has the story.

GOP Is as Desperate in Texas as Wisconsin

Update: See Ernest A. Canning excellent analysis on the Brad Blog. "The state," the Veasey petition argues, "has no interest in --- and the public certainly has no interest --- in enforcing intentionally discriminatory laws." The DoJ adds to the weight of that argument by pointing to the District Court's findings as to how, in the face of demographic changes that threaten to reduce white Anglo Texans to minority status, each successive Photo ID bill enacted by the state became increasingly restrictive of minority voting rights --- with SB 14 having been passed "with 'unnatural speed' over the objection of legislators who represented predominantly non-white districts," and that "the Texas Legislature had rejected a 'litany of ameliorative amendments' that would have softened SB 14's impact on minority voters."
Republicans were dealt a body blow in their efforts to block voters in Wisconsin last week.

How are Republicans supposed to win if they can't block voters and gerrymander districts?

Next up is Texas which has an even more restrictive Voter ID law than Wisconsin's.

In Texas the Court of Appeals for the Fifth Circuit imposed this onerous Voter ID law even closer to Election Day than did the Seventh Circuit on Sept. 12 (before this decision was vacated).

"On October 9, U.S. District Judge Nelva Gonzales Ramos struck down Texas’s harsh photo ID law, ruling after a lengthy trial that the Texas legislature enacted the law to purposely discriminate against minority voters," notes the Brennan Center.

Plaintiffs' emergency application against the Texas ID law and others are being heard by Justice Scalia.

The U.S. Dept of Justice has also filed an application.

The case is Veasey v. Perry (No 14A393). The state of Texas' response is due Thursday at 5 pm.

An array of civil rights groups and the US Dept of Justice against Texas.

Oct 13, 2014

Voter ID Takes Hits Across the Board

This has been a bad week for the Republican Party's voter obstruction project.

More light has been shone on the anti-voting efforts of the GOP across the nation.

GOP allies in the judiciary, especially the Soviet bloc on the U.S. Supreme Court—Scalia, Thomas and Alito—are hostile to voting. They would prefer a different system of government.

Rick Hasen puts it thusly: "Simply put, Justices Alito, Scalia and Thomas do not value the right to vote as strongly as the other members of the Court."

This morning's lede editorial in the New York Times notes voter ID laws are an "antidemocratic sham."

State and municipal election bureaucrats in Wisconsin are mostly silent on these facts that Republicans are attacking the foundation of representative democracy.

One man who is not silent is Judge Richard Posner writing for dissenting colleagues on the Court of Appeals for the Seventh Circuit.

Posner notes the fact that it is Republicans who are trying to stop citizens from voting.

Rarely has a white power structure, not since Jim Crow, have underground political movements been called out at the judicial level for its actions against the Constitution.

From Posner's October 10 dissent:
States with Strict Photo ID Laws — Political Makeup When the Laws Were Adopted
(Nos. 14-2058 and 14-2059; p. 17)

Oct 12, 2014

Same-day Voter Registration Problem, and Easy Fix

Wisconsin Voter Registration Application;
GAB-131 document (REV 2014/05)
No voter ID is required to vote in Wisconsin

Repeat, no matter the noise emitting from our corrupt attorney general: No voter ID is needed to vote in Wisconsin.

The U.S. Supreme Court has ordered no voter ID.

Moving on.

Same-day registration

There is one issue with Election-day registration (that Scott Walker tried to eliminate in 2012, backing down), and it's an easy fix.

The problem

The problem is the new voter registration system on Election Day has voters enter their data into the voter registration form from lap tops, under the supervision of poll workers (who ask questions on ID and residency).

The Fall 2014 Primary Election Day in August gave us a live usability test of the new voter registration system.

The results point to the problem for November's Election Day-registration voters, and the time period for registering voters increasing exponentially in high-turnout elections: Time to register on the new system is long and confusing for voters.

A rough guess: 30 minutes per voter.

Election inspectors (poll workers) train in filling out the Wisconsin Voter Registration Application form (above-right). Voters are given no such training and asked to input the data not knowing what data field is next.

The process takes longer with the voter (rather than the election inspector) entering the data, presenting the necessary ID and residency documents, printing out the Registration Application form, checking it for errors, and then voting.

Some 30 minutes per voter for registering, plus time in line, and each voter's time ahead of other voters added to voters behind her.

The Fix to the problem

The fix is multiple lap tops and more staff to help registering.

In our voting district, Fitchburg District One (wards one-four), the demographics and frequency of same-day registrants demand some nine lap tops per voting district of roughly 3,000-plus voters on Election Day.

In communities where there are young voters and renters, nine lap tops per 3,000-registering voters are advisable to decrease the long lines in November 2012 and June 2012.

In student and dense population districts, this number is higher.

Ask your municipal clerk. Ask the League of Women Voters of Wisconsin and the Democratic Party.

Among Wisconsin's 1,800 municipal clerks, most are open to logical suggestions, and clerks have lists of Special Registration Deputies who are willing to take up the slack of regular poll workers to see that Election Day registrants are not penalized for participating in the highly successful Wisconsin policy of same-day registration.

People (especially those with young children) are sometimes forced to get up and walk away without having registered when the lines are too long, another objective of the Republican Party. I've seen it.

"During major statewide elections, 10 – 15 percent of Wisconsin electors register to vote or update their voter registration on Election Day," notes the Wisconsin Governmental Accountability Board (GAB).

Statewide Election Day-registering voters composed some 266,974 voters, 10.6 percent of the electorate in November 2012, notes the GAB.

Here is a list of Wisconsin municipal clerks, staff and contact info.

For more information on voter registration deadlines and how-to-resister, see the GAB voter registration site. Early registering and early voting are advised.

For the Republican Party that used the now-blocked voter ID law as "a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government," other dirty tricks are ready to be implemented including harassment and interference with a voter's effort to vote.

If you see intimidation, discrimination, or any interference with a voter's process of voting, check the polling place's large bulletin board of public information and report the crimes.

Ask for the Chief Election inspector, and ask for the documenting of an incident report for starters. Then call the Clerk's office, the GAB, and the US attorney's office.

Oct 10, 2014

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

Update: "Posner's dissent includes a devastating response to virtually every false and/or disingenuous rightwing argument/talking point ever put forth in support of Photo ID voting restrictions, describing them as "a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government." (Brad Friedman)
On the Court of Appeals for the Seventh Circuit known for its intellectual bulk, judges such as Easterbrook, Wood and Posner stand out.

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

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

The rehearing failed five-to-five.

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

Notes Posner:
The Practitioner’s Handbook for Appeals to the United States Court of Appeals for the Seventh Circuit states that 'en banc rehearing is authorized without a party’s invitation. A member of the court may ask for a vote on whether to rehear a case en banc.' I asked for a vote on whether to rehear the appeals en banc. The judges have voted, the vote was a 5 to 5 tie, and as a result rehearing en banc has been denied. We—the five who voted to grant rehearing en banc—believe that the decision to allow the panel’s opinion reversing the district court to stand, without consideration of the case by the full court, is a serious mistake.
Posner presents myriad arguments eviscerating the Easterbrook opinion, and as an example notes one bizarre element in Easterbrook's opinion that dismissed social scientific evidence introduced at federal trial last year because the evidence was published in the Harvard Law Review, a fact noted earlier this week by Rick Hasen.

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

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

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

This study is dismissed by Easterbrook.

Writes Posner:

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

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

Concludes Posner:

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

No-Voter ID Ruling Is Bodyshot to Scott Walker, Win for Wisconsin Voters


Update II: Wisconsin Attorney General J.B. Van Hollen won't clarify statement asserting Wisconsin will "have voter ID on election day," (Hall, Wisconsin State Journal) mostly likely because the corrupt partisan is already bordering on the edge of a process for a contempt citation.

Update: Despite the six-to-three decision by the US Supreme Court blocking voter ID in Wisconsin, Wisconsin's corrupt attorney general, J.B. Van Hollen, says "We will be exploring alternatives to address the Court's concern and have voter ID on election day." (Bolin, WKOW) One wonders if Van Hollen actually read the Court's order reinstating the "permanent injunction" of Wisconsin's photo voter ID law.
Constitutional scholars and voting rights attorneys contacted the last few weeks described the Sept. 12 order (and the supporting appellate opinions) reinstating (for 27 days it turns out) Wisconsin's photo voter ID law as disingenuous, unconscionable and unconstitutional.

The legal case against courts' changing election law close to (indeed after Wisconsin's election had begun) is a "no-brainer" (Hasen) and air-tight.

So why would Scott Walker and Wisconsin Attorney General go to extraordinary lengths to get a judicial imprimatur to implement the Voter ID law after our election had begun?

Because, as Scott Walker through Van Hollen's DoJ, conceded in the federal trial last year some 300,000 Wisconsin citizens lack the restrictive range of photo voter IDs needed to vote.

Enough of those 300,000 voters don't vote and Scott Walker wins reelection.

Walker and the Republicans likely will not pay a price for blocking registered voters from voting, unless the targeted voters follow the advice of a friend from Door county: Never give up.

Most people are not students of constitutional rights and winning constitutional rights from the majority has always been a struggle; Republicans are hostile to the civil rights movement, and this writer has seen the reaction of white citizens to the sight of a black man voting: Distaste and hostility.

Wisconsin election bureaucracies are too passive and timid to stand up and state the facts about the barriers imposed against voters, to advocate for voters.

Judge Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit has shown his true colors, and made up facts out of whole cloth in his deplorable work on behalf of the Republican Party in his hastily released opinion earlier this week.

A man of Easterbrook's gifts employs them for corrupt purposes, unforgivable.

Rick Hasen cautions this morning that Wisconsin should not be too excited that the Court "did the right thing now in the Wisconsin case. But don’t expect them to continue doing the right thing. The Chief [John Roberts] and Justice Kennedy will very likely be with today’s Wisconsin dissenters on the merits down the line."

There is no expectation that privileged elites will keep doing the right thing, and there never has been.
For more reaction, here are comments from the ACLU and the Advancement Project, working for the many plaintiffs in Ruthelle Frank v. Scott Walker.

From Dale Ho, director of the ACLU's Voting Rights Project: "Today's order puts the brakes on the last-minute disruption and voter chaos created by this law going into effect so close to the election. It will help safeguard the vote for thousands of Wisconsinites as this case makes its way through the courts."
Advancement Project Senior Attorney and Director of Voter Protection, Katherine Culliton-González. - See more at:

From Advancement Project Senior Attorney and Director of Voter Protection, Katherine Culliton-González: "While there is zero evidence of voter fraud, Wisconsin’s voter ID law would have risked disenfranchising hundreds of thousands of registered voters if it were allowed to take effect. The Supreme Court was absolutely correct in refusing to fast-track restricting access to the ballot in the upcoming election. Voting is the one time when we are all equal. Whether you’re young or old, rich or poor, Black, White, Latino, Asian or Native American – when we vote, we all have the same say. But this is not the end of the fight. We will keep working to ensure that this law is permanently enjoined, so that all voters can continue to have a voice in our democracy."
Advancement Project Senior Attorney and Director of Voter Protection, Katherine Culliton-González. - See more at:

Oct 9, 2014

US Supreme Court Halts Wisconsin Voter ID Law

Ruthelle Frank of Brokaw, Wisconsin fights for
her right to vote against Scott Walker and
the Republican Party
In a victory of civil rights advocate, the US Supreme Court has ordered that Wisconsin's restrictive photo voter ID law is not to be enforced in the November election.

This means photo voter ID is not necessary for registered Wisconsin voters to cast votes.

The order is a defeat for Wisconsin Republicans who targeted the disabled, minorities, classes of the elderly and young voters who have trended heavily Democratic in their voting patterns.

These voters are more apt to not have the restrictive range of IDs Republicans crafted in their legislation, Act 23.

The case is Ruthelle Frank, et al., Applicants v. Scott Walker et al (No. 14A352).

Here is the opinion (from Rick Hasen's Election Law Blog); Justices Samuel Alito, Antonin Scalia and Clarence Thomas dissented.

The state of Texas' restrictive Voter ID law was also struck down this evening by a U.S. District Court judge.

The Advancement Project celebrates voting rights victory.
Earlier today, attorney Katherine Culliton-González of the Advancement Project expressed confidence, saying, voting rights advocates have an "exceedingly strong case on the facts and the law" to vacate or nullify the stay by the Court of Appeals for the Seventh Circuit.

The Opinions read:

No. 14A352
[October 9, 2014]
The application to vacate the September 12, 2014 order of the United States Court of Appeals for the Seventh Circuit presented to Justice Kagan and by her referred to the Court is granted and the Seventh Circuit’s stay of the district court’s permanent injunction is vacated pending the timely filing and disposition of a petition for a writ of certiorari respecting case Nos. 14-2058 & 14-2059. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court

JUSTICE ALITO, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting.
There is a colorable basis for the Court’s decision due to the proximity of the upcoming general election. It is particularly troubling that absentee ballots have been sent out without any notation that proof of photo identification must be submitted. But this Court “may not vacate a stay entered by a court of appeals unless that court clearly and ‘demonstrably’ erred in its application of ‘accepted standards.’”
Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 571 U. S. ___, ___ (2013) (slip op.,at 1)
(SCALIA, J., concurring in denial of application to vacate stay) (quoting Western Airlines, Inc. v. Teamsters,480 U. S. 1301, 1305 (1987) (O’Connor, J., in chambers); some internal quotation marks omitted). Under that test, the application in this case should be denied.

US Supreme Court Ruling on Wisconsin Voter ID Expected Within Forty-eight Hours

Wisconsin voting rights advocates have an "exceedingly strong case on the facts and the law" to vacate or nullify the stay by the Court of Appeals for the Seventh Circuit, said Katherine Culliton-González this morning, freeing Wisconsin voters to cast their votes without presenting a restrictive range of voter IDs.

Culliton-González is co-counsel to the League of United Latin American Citizens (LULAC) of Wisconsin, co-plaintiffs in the Wisconsin civil rights cases now before the US Supreme Court.

Culliton-González works for the Advancement Project as Senior Attorney and Director of Voter Protection.

An emergency petition (application) was filed with Justice Kagan, but sources close to the litigation said they expect the petition to be heard by the full Court.

If Kagan were to vacate the stay, then Republican Wisconsin Attorney General Van Hollen could and likely would then file another emergency petition (application) to another justice, under US Supreme Court rules.

Van Hollen and Scott Walker want the Wisconsin Voter ID law in effect on Election Day to disenfranchise as many minority and young voters as possible, increasing Scott Walker's chance for reelection

Culliton-González pointed to the many cases supporting voter rights advocates following the Pursell principle of federal courts never changing the rules of an election after an election has begun or close to an election, a principle that emphatically applies to Voter ID cases and in Wisconsin where the appellate panel ruled after the election had begun.

Check at Election Law Blog and Ruthelle Frank v. Scott Walker for updates.

Oct 8, 2014

Waiting for Kagan

Updated - Hundreds of thousands of voters and those who care about them are waiting on the Emergency application now before US Supreme Court Justice Kagan to restore the status quo, and rid Wisconsin of its restrictive Photo Voter ID law while the election is ongoing and adjudication continues.

Republicans hope for a favorable ruling from Kagan to block as many young and minority voters as possible. Other Wisconsin citizens caught in the voter obstruction net are a price the Republican Party is willing to inflict.

Election experts say a ruling could come at any time.

So we wait, and wait.

Check at Election Law Blog and Ruthelle Frank v. Scott Walker for updates.

The ACLU, one of a host of civil liberties groups fighting voter obstruction law, released a press release blasting the opinion of the Court of Appeals for the Seventh Circuit.

WASHINGTON — The American Civil Liberties Union today asked the U.S. Supreme Court to stay Monday's ruling from a Seventh Circuit appeals panel that concluded Wisconsin's voter ID law is constitutional and does not violate the Voting Rights Act. 

 The following is a statement from Dale Ho, director of the ACLU's Voting Rights Project:

 "Permitting this law to go into effect so close to the election is fueling voter confusion and election chaos in Wisconsin, particularly for the many voters who have already cast their ballots. Voters deserve a fair shake, and this last-minute disruption changes the rules of the game in an election that is already underway, and risks locking out thousands of voters. The stakes are extremely high."

 The motion filed today also notes factual inaccuracies in the appeals panel's ruling, including:

- "The Seventh Circuit also could not fathom that so many registered Wisconsin voters lack a photo ID 'in a world in which photo ID is essential to board an airplane, . . . pick up a prescription at a pharmacy, open a bank account or cash a check at a currency exchange, buy a gun, or enter a courthouse to serve as a juror or watch the argument of this appeal.' Wrong, wrong, wrong, wrong, and wrong again. Wisconsin fliers, patients, bank customers, gun owners, and court watchers do not need photo IDs. Only Wisconsin voters."
- "The panel inexplicably stated that key voter witnesses 'did not testify that they had tried to get [a copy of their birth certificate], let alone that they had tried but failed.' But numerous witnesses testified that they tried and failed to get a birth certificate so they could get a voter ID."
The ACLU, the ACLU of Wisconsin, the National Law Center on Homelessness & Poverty, and Dechert LLP are co-counsel in this case, Frank v. Walker.

 A copy of the full motion is available here.

Oct 7, 2014

Van Hollen Jumps the Shark in Last-Ditch Effort to Preserve Wisconsin Voter ID

Here is another ludicrous element of the J.B. Van Hollen's last-ditch effort to preserve Wisconsin's photo voter ID law, imposed after voting had begun.

Van Hollen adopts Frank Easterbrook's "chutzpah-filled argument that it would cause voter confusion to undo the confusion caused by the 7th Circuit’s surprise order," notes Rick Hasan, election law expert.

But there's more.

Writes Van Hollen's brief:
Wisconsin’s widest-circulated newspaper declared shortly after the denial of en banc rehearing that, “The voter ID issue is settled—at least for the Nov. 4. election: Voters will be required to bring a photo ID to the polls.”
Van Hollen cites a Milwaukee Journal-Sentinel editorial, "Don't let voter ID law stop you from voting on Nov. 4" from Sept. 28, 2014.

Since Sept 28, there have been at least two news pieces prominently mentioning the Emergency petition (application) pending before U.S. Supreme Court Justice Elena Kagan:

So, to believe Van Hollen, we are to accept that a Milwaukee Journal-Sentinel editorial written before major news pieces in the same daily has now confused Wisconsin voters.

Kagan is expected to rule soon; and likely either ask for more briefing, rule for voting rights advocates against the obstruction law, or throw the matter to whole Court (bad for voting rights advocates).

Or, Kagan could deny the  Emergency petition (application). Crazier things have happened.

Absurd Position from Wisconsin Attorney General Van Hollen

Update: Read Rick Hasen's commentary on Van Hollen's response brief. Decision could be announced any moment.
Wisconsin's Attorney General J.B. Van Hollen released a statement yesterday, saying because Judge Frank Easterbrook released the appellate Court's opinion yesterday, 29 days before Election Day, this "decision on the merits provides greater certainty that Wisconsin citizens will have the election in November that they expected three years ago -- one with Voter ID."

Who knew the Wisconsin electorate was so in tune with the opinions from the Court of Appeals for the Seventh Circuit?

I thought it was just scholars, writers and voting rights activists.

Van Hollen is trying to get past the Purcell principle that says federal court decisions shy away from elections close to beginning (Wisconsin's had already begun) lest chaos ensues and voters become disenfranchised.

Easterbrook rushed out an opinion, appalling and disingenuous as it is, to assist J.B. Van Hollen's response to the Emergency application now before US Supreme Court Justice Kagen.

Van Hollen's response is due at 5:00 pm (Eastern time).

Wisconsin's corrupt Republican attorney general will assure Justice Kagen everything is clear in Wisconsin now.

Easterbrook reinstated Wisconsin Voter ID law on Sept. 12 after Wisconsin's election had already begun, votes had already been cast and chaos became the defining characteristic to the point that one in five Wisconsin citizens still say have no idea they need voter ID.

One hopes Kagen will not buy Van Hollen's absurd argument, and at least partially vacate Easterbrook's stay on the injunction of Wisconsin voter obstruction law that Scott Walker needs in place to win in November.

Oct 6, 2014

Election Law Expert: Easterbrook's Seventh Circuit Opinion: Horrendous

Rick Hasen rushed out a response to the Seventh Circuit's opinion on the merits of Wisconsin's Voter ID cases.

My fav: "The opinion puts forward the narrowest test yet I’ve seen for deciding when a vote denial type claim (which Easterbrook calls a voter qualification claim) violates section 2 of the Voting Rights Act. He cites statistics showing whites are much, ... more likely than blacks in Milwaukee to have a driver’s license (the easiest form of voter id to use in WI if you have it).  No big deal he says: black voting rates are high enough, and so long as “everyone has the same opportunity to get a qualifying voter ID” in Wisconsin there can be no voting rights violation. Never mind that because of past discrimination African-American voters are on average poorer and will have a harder time coming up with the money for the underlying documents for a voter id. The rich and poor can both sleep under bridges. To Easterbrook, one just “scrounges” the money to get the birth certificate—there is no sensitivity that not everyone is as rich as a federal judge."

Easterbrook wants Judge Kagen to throw the case to the full Court.

Kagen will likely at least partially vacate the Seventh Circuit's stay.

Oct 2, 2014

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.

Must-read Election Analysis by Ned Foley at Moritzlaw.osu

By Edward B. Foley - Moritz College of Law; Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law; Director, Election Law @ Moritz

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) 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 leading case, from the First Circuit, is Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978).  It, too, involved absentee ballots.  Rhode Island election officials had made absentee ballots available to voters.  After the ballots had been cast, the state supreme court ruled that these voters should not have received those ballots.  (It was a primary election, and the state court said absentee ballots were available only in general elections.) Too late, said the First Circuit.  It violates Due Process to give voters ballots telling them they will count if cast and then, after they are cast, say “surprise” they won’t count after all.
H/T to Rick Hasen

Non-profits, Dems Educate Wisconsin on Voter ID; Municipal-State Bureaucracies Flounder

Update: Madison and Dane County have jointly launched a Public Outreach Campaign on Voter ID one day following Jessie Opoien's piece in the Capital Times.

One in five voters don't know they need a GOP-approved photo voter ID to vote, reports Jessie Opoien in The Capital Times.

Opoien's piece was posted minutes before news hit that an emergency petition to the U.S. Supreme Court had been filed by multiple plaintiffs to block Wisconsin's photo voter ID law this morning.

"Young voters are least likely to know about the requirement, with 26 percent of voters ages 18-29 unaware," notes Opoien.

Good news for the Republicans.

Bad news for Wisconsin democracy.

To borrow from Pogo with a little citizen Don Ystad thrown in, 'we have found the enemy and he is us,' - the voters. So the Republican Party believes.

Meanwhile, the Government Accountability Board (GAB) is asking the Wisconsin legislature for "$460,800 for a statewide TV, radio and online campaign to educate residents about the voter identification law that will be in effect for the Nov. 4 election." (Green Bay Press Gazette)

That will help.

So would the GAB speaking up for the voters, echoing the point that changing the rules after elections have begun is likely to disfranchise voters.

So, Wisconsin's 1,852 municipal clerks with staff administer and implement the conflicting guidelines from the GAB to educate the electorate: Result, one in five voters don't know what to do.

Election law experts call this a failing grade.

I helped a voter cast her absentee ballot after receiving conflicting statements from the municipal clerk's office on photo voter ID.

Confusion came from the GAB, I was told. I believe it.
Difficult to administer an unconstitutional law when the rules are changed after voting has already begun.

No serious jurist who not a partisan Republican believes Wisconsin's Act 23 should have ever passed muster with the Wisconsin Supreme Court, or the federal Court of Appeals for the Seventh Circuit.

So, we wait for the U.S. Supreme Court, likely to rule within days if not hours.

Meanwhile the Wisconsin League of Women Voters is desperately trying to educate the public.

The ACLU is desperately trying to educate the public.

The Democratic Party is desperately trying to educate the public.

Wisconsin Public Radio and Wisconsin Public Television, and on and on.

Emergency Petition to US Supreme Court Filed to Block Wisconsin Voter ID Law

Update: ACLU site: The following is a statement from Dale Ho, director of the ACLU's Voting Rights Project:
"Thousands of Wisconsin voters stand to be disenfranchised by this law going into effect so close to the election. Hundreds of absentee ballots have already been cast, and the appeals court's order is fueling voter confusion and election chaos. Eleventh-hour changes in election rules have traditionally been disfavored precisely because the risk of disruption is simply too high."
"[T]here is an overwhelming public interest in not disenfranchising large numbers of registered voters." (p. 19, Emergency Application to Vacate Stay RE Wisconsin Act 23) (emphasis added)

Via Rick Hasen, here's the text of the petition.

Emergency Application to Vacate Stay

To the Honorable Elena Kagan, Associate Justice of the United States Supreme Court and Circuit Justice for the Seventh Circuit:

... Unless this Court vacates the order below, the panel’s stay will sow confusion at the polls and discourage voting in the November 4 general election in Wisconsin. Voting is the foundational element of a free society. Chaos in an election— especially when entirely preventable—is undemocratic. Yet weeks before a major election, the panel’s stay order dramatically changed the status quo for voters— i.e. , the continuation of Wisconsin’s traditional voting practices and suspension of Act 23’s stringent new photo ID requirements. (p.2)


In fact one in five Wisconsin citizens do not know they need a photo voter ID to cast a vote. (Jessie Opoien, The Capital Times)

As for the Big Lie of in-person voter fraud:

[T]he court found that, after two years of litigation, “[t]he defendants could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past.” App.49. Even taking unresolved reports of voting fraud into account, “[t]he rate of potential voter-impersonation fraud is . . . exceedingly tiny”; “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.” App.48, 50, 53. Thereafter, the court denied the State’s motion to stay the injunction pending appeal, concluding “that it is absolutely clear that Act 23 will prevent more legitimate votes from being cast than fraudulent votes.” App.75. (p.7)

One in five Wisconsin voters: Don't know they'll need photo ID to vote

Jessie Opoien in The Capital Times has the story this morning.

Writes Opoien: "According to the most recent Marquette University Law School poll, released Wednesday, 20 percent of registered voters said — wrongly — that voters will not have to show an ID on Election Day. Among likely voters, the number was 18 percent."

For Republicans, these are dream numbers.

Confusion and chaos via dirty tricks and it's all legal.

Forget the Wisconsin and United States Constitutions, of no concern to GOP judges.

Frank Easterbrook of the Court of Appeals for the Seventh Circuit leads the way in our district, giving the imprimatur of GOP hacks on the bench.

Wisconsin's 1,852 municipal clerks are not to blame; not many expect clerks to act as civil liberty advocates.

Chaney, Goodman and Schwerner posters don't exactly line the walls at Wisconsin municipal buildings.

Suffrage, what's that? When the Packers lose?

The Wisconsin Governmental Accountability Board, Kevin Kennedy and Mike Haas for example, are complicit but only after the fact, refusing public criticism of the law and the GOP judges corrupt results-directed ruling as Wisconsin citizens face their voting rights blocked after our election had already begun.

Maybe a GAB official will speak up and express concern about Wisconsin citizens not being able to vote?


Better to remain silent, and hope the ACLU files an emergency petition to the U.S. Supreme Court fast. [And they and other plaintiffs just did.]

Passive compliance from bureaucrats is to be expected; shocking.

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.

Aug 2, 2014

U.S. DoJ Statement on Wisconsin and Ohio Voter Obstruction Laws

The fight to protect voting rights in Wisconsin is now in federal hands as the Wisconsin Republican Party's four members on the state Supreme Court have dismantled impartiality and the rule of law in favor of corruption and service to Republican campaign finance contributors.

Welcome to Mississippi's Supreme Court.

Scott Walker is working on moving the rest of the state into Mississippi territory in policy areas ranging from public education to environmental protection as Walker's presumptive Democratic Party opponent, Mary Burke, avoids an issues-based campaign ignoring grassroots citizens' groups, and more broadly Scott Walker's pernicious social engineering project.

From the Civil Rights Division of the U.S. Department of Justice:
Attorney General Eric Holder announced today [Wednesday, July 30, 2014] that the Justice Department has submitted filings in voting rights cases in Wisconsin and Ohio.  The department’s involvement in these two cases represents its latest steps to enforce the remaining parts of the Voting Rights Act against restrictive state laws, following up on the department’s lawsuits last year against similar measures in Texas and North Carolina.
In the Wisconsin case, the department filed an amicus brief in Frank v. Walker and LULAC v. Deininger, supporting an earlier ruling by the U.S. District Court for the Eastern District of Wisconsin that struck down Wisconsin’s strict photo voter identification requirement due to its effects on minority voters under Section 2 of the Voting Rights Act, and because it unduly burdens a substantial number of voters in violation of the Fourteenth Amendment.  In the Ohio case, the department filed a statement of interest in NAACP v. Husted, a challenge by a civil rights group to a state law curtailing early voting and same day registration.   The department’s brief contests the state of Ohio’s incorrect interpretation of the standards set forth by Section 2 of the Voting Rights Act.
“These filings are necessary to confront the pernicious measures in Wisconsin and Ohio that would impose significant barriers to the most basic right of our democracy,” said Attorney General Eric Holder.   “These two states’ voting laws represent the latest, misguided attempts to fix a system that isn’t broken.   These restrictive state laws threaten access to the ballot box.   The Justice Department will never shrink from our responsibility to protect the voting rights of every eligible American.   And we will keep using every available tool at our disposal to guard against all forms of discrimination, to prevent voter disenfranchisement, and to secure the rights of every citizen.”
In the amicus brief filed today in the U.S. Court of Appeals for the Seventh Circuit, the department argues that the district court reached the correct decision by finding that Wisconsin’s voter ID law, known as Act 23, violated the Fourteenth Amendment, because it imposes unjustified burdens on a significant number of voters, and violated Section 2 of the Voting Rights Act, because it has a discriminatory result on African-American and Hispanic voters.   In addition to finding that Act 23 would result in minority voters having less opportunity to participate in the political process relative to other members of the electorate, the court found that the state’s claimed interests in combating voter fraud and promoting electoral confidence did not justify the significant burdens Act 23 imposes on substantial numbers of voters who lack a qualifying ID.
In the statement of interest filed today in U.S. District Court for the Southern District of Ohio, the department makes clear that Section 2 prohibits the state of Ohio from imposing any voting qualification, prerequisite to voting, or any standard, practice or procedure that would result in the denial or abridgement of the right to vote on account of a person’s race, color or membership in a language minority group.  The filing also makes clear that in its own filings in the case the state of Ohio has incorrectly interpreted its requirements under Section 2.   The department did not take a position on any of the other claims in the case.
“The United States Department of Justice today affirms its clear position that, under Wisconsin’s Act 23, minority voters have less opportunity to participate in the political process,” said James L. Santelle, United States Attorney for the Eastern District of Wisconsin.  “The amicus brief that we are filing not only supports the trial court’s findings but also reflects the department’s continuing focus on ensuring that the franchise remains fully available to all qualified voters.”
“Wisconsin's proud history is one of expanding the opportunity to vote,” said John W. Vaudreuil, United States Attorney for the Western District of Wisconsin.   “I'm honored to file this brief with the United States Department of Justice seeking to ensure that this great Wisconsin tradition is reaffirmed, and that every Wisconsin citizen has an equal opportunity to participate in democracy.”  
“This office remains committed to preserving the rights of every Ohio voter,” said Steven M. Dettelbach, United States Attorney for the Northern District of Ohio.   “Making sure that courts continue to carefully examine voting restrictions, such as the ones recently imposed in this state, is an important part of that effort.”
In the year since the Supreme Court struck down the coverage formula that determined which jurisdictions were subject to preclearance under the Voting Rights Act in Shelby v. Holder, Section 2 of the Voting Rights Act remains one of the department’s most powerful tools to protect voting rights.   Last year the department used Section 2 to file two lawsuits against the state of Texas to stop the newly enacted discriminatory voter ID law and and to obtain a ruling that the state engaged in intentional discrimination in adopting its 2011 redistricting plans.  In North Carolina, the department used Section 2 to sue to stop a number of provisions in an election law that imposes strict voter ID requirements, restricts early voting, eliminates same-day registration and refuses to count otherwise valid provisional ballots cast in the wrong precinct.  The suit alleges that the challenged law was motivated by a racially discriminatory purpose and will result in African-American voters having less opportunity than other citizens to participate in the political process.  All three cases are ongoing.

Related Material: