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.
Showing posts with label Wisconsin Governor Election. Show all posts
Showing posts with label Wisconsin Governor Election. Show all posts
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.
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
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.
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)
Correct.
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)
"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)
Correct.
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?
Nah.
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.
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?
Nah.
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.
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