Wisconsin Voter ID Law Challenge Gets No Hearing Before Supreme Court

Updated - Wisconsin case assists GOP efforts to block voters likely to oppose the GOP

Voter Photo ID is law of the land in Wisconsin - Implementation will begin AFTER the Spring General Election on April 7

Update II: "Our legal team did an outstanding job defending Wisconsin law, from the trial court to the U.S. Supreme Court. Absentee ballots are already in the hands of voters, therefore, the law cannot be implemented for the April 7 election. The Voter ID law will be in place for future elections – this decision is final."—Wisconsin Attorney General Brad Schimel

Update: It is possible that the four 'liberal' justices on the Court torpedoed this challenge to Wisconsin's Voter ID out of concern the five rightwing activist justices on the Court are looking to further slice off section(s) of what remains of the the Voting Rights Act. This suggests that the five GOP justices are so off-the-charts hostile to the Voting Rights Act, (enacted to enforce the Fifteenth Amendment to the Constitution of the United States, and for other purposes), that a radical policy of further disfranchisement is coming in the future, should the five GOP justices remain on the Court.
 ---
The U.S. Supreme Court decided this morning to reject a challenge by civil rights activists to Wisconsin's Photo Voter ID law.

The cases, Walker v. Frank (and a consolidated case), will not be reviewed by the Court, a refusal to hear a Photo Voter ID law on the merits in the first major challenge before the Court since Crawford v. Marion County Election Board (Indiana) (2008), a state-specific and content-specific opinion.

The Court will not rule whether Wisconsin's restrictive Photo Voter ID law abridges the right to vote without justification in violation of the U.S. Constitution's Equal Protection Clause and the Voting Rights Act, Section 2.

Republicans nationwide have used Voter ID laws and other laws to target the disabled, minorities, classes of the elderly and young voters who have trended heavily Democratic in their voting patterns.

As noted in SCOTUSBlog, at issue in the Frank case is "Whether a state’s voter ID law violates the Equal Protection Clause where, unlike in Crawford v. Marion County Election Board, the evidentiary record establishes that the law substantially burdens the voting rights of hundreds of thousands of the state’s voters, and that the law does not advance a legitimate state interest; and (2) whether a state’s voter ID law violates Section 2 of the Voting Rights Act where the law disproportionately burdens and abridges the voting rights of African-American and Latino voters compared to White voters."

Wisconsin's Voter ID law was upheld by the Court of Appeals for the Seventh Circuit in a heavily criticized opinion by Judge Frank Easterbrook on October 6, 2014 issued after voting had already begun in the 2014 general Fall election. Judge Easterbrook's decision is now operative.

The Voter ID law was enjoined days later after an order by the U.S. Supreme Court (now terminated) issued on October 9, 2014, (Mal Contends) reinstating U.S. District Judge Lynn Adelman's decision and order issuing a permanent injunction on April 29, 2014.

After the Supreme Court order, Wisconsin's Republican attorney general at the time, J.B. Van Hollen, issued a statement contradicting the Court order, saying Wisconsin will "have voter ID on election day" in another GOP effort to confuse and mislead voters. (Mal Contends and Hall, Wisconsin State Journal) Van Hollen later backed away from his statement.

Frank v. Walker also features the extraordinary development of the federal appellate court's Judge Richard Posner's call for a rehearing of the Frank decision on October 10, 2014, a suggestion that failed five-to-five.

What is significant in Posner's 43-page request is the meticulous language in which Posner "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,'" as noted by the legal-political writer Brad Friedman and other legal scholars across the nation. (Mal Contends)

Posner is the author of the 2007 appellate court decision upholding Indiana's Voter ID law in Crawford.

Posner in 2013 states that "data" and "evidence" on the consequences of judicial opinions ought help to guide appellate decisions on the constitutionality of state Voter Id laws, and other judicial decisions. (Posner, The New Republic)

The author of the 2008 U.S. Supreme Court opinion on Crawford, Justice John Paul Stevens (1975-2010), has also issued a statement after he retired in which he takes issue with Voter ID laws as a means of obstructing voters (Bravin, Wall Street Journal and Josh Blackman) and with the Court's evisceration of the Voting Rights Act in 2013. (Cohen, The Atlantic)

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

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

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

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

The rehearing failed five-to-five.

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

Notes Posner:

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

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

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

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

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

This study is dismissed by Easterbrook.

Writes Posner:

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

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

Concludes Posner:

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