Federal Intervention to Protect Voting in Wisconsin

Bending Toward Justice, The Voting Rights Act
and the Transformation of American
Democracy (Gary May. Basic Books; 2013)

Wisconsin Republicans facing demographic changes open new fronts in their war to determine who gets to vote

Updated—Alabama, Arizona and Kansas moved ahead with a new qualification for voters—"concrete proof of citizenship," representing an escalation of the Republican Party's efforts to obstruct American voters.

As other Republican state efforts to obstruct voters continue, the federal response is being contemplated as the formal structures of this democracy are under assault at the state level by one political party. Wisconsin is leading the way.

The Republican voter obstruction effort is a years-long project to stop as many non-GOP voters as possible from voting, and the battleground is the states where Republicans have control of both the legislature and governor's office.

In February 2012, attorney Ernest A. Canning argued for U.S. Dept. of Justice intervention in Wisconsin based on Section 2 of the Voting Rights Act, referring to a legal challenge to Wisconsin's photo voter ID law.

The case is League of United Latin American Citizens of Wisconsin v. Deininger (Case 2:12-cv-00185), now under deliberation after a November 2013 trial that saw a mountain of social scientific evidence of discrimination presented against Wisconsin Act 23, a restrictive photo voter ID law. See also Frank v. Walker, (Case 11cv1128), a case held at trial with League.

An observer said the trial was a rout for pro-voting rights advocates, the consensus opinion.

Judge Richard Posner, who wrote the opinion for the Court of Appeals for the Seventh Circuit in Crawford v. Marion County Election Board later affirmed by the Supreme Court in 2008, said in October last year that the judiciary requires "data" and "empirical evidence," both in adjudication and on the consequences of its decisions and opinions.

"I plead guilty to having written the majority opinion (affirmed by the Supreme Court) upholding Indiana’s requirement that prospective voters prove their identity with a photo ID—a type of law now widely regarded as a means of voter suppression rather than of fraud prevention," said Posner.

This evidence is now available, especially from the Wisconsin trial, and it suggests a crisis of democracy demanding both a judicial and federal executive branch response.

"The credible evidence convincingly proved that Act 23 will impose harsh and widespread burdens on voters. Virtually all of the factual testimony - of Plaintiffs, other voters, non-parties who provide assistance to voters, as well as Defendants and state employees called adversely by  Plaintiffs - went essentially unchallenged by Defendants. All this evidence compels one conclusion:  Act 23 violates Section 2 of the Voting Rights Act ("VRA"), 42 U.S.C. 1973, and the Fourteenth and Twenty -Fourth Amendments to the U.S. Constitution, and must be enjoined," reads a Frank v. Walker Post-trial brief challenging Wisconsin Voter ID Law. Act 23—passed with unanimous GOP support, unanimous Democratic opposition and unanimous opposition from civil rights and voting rights citizen groups.

The GOP's effort to hold down minority voting participation is the "largest legislative effort to roll back voting rights since the post-Reconstruction era," as characterized by Judith Browne Dianis, a civil rights litigator at The Advancement Project.

On March 19, 2014, a "federal court decided Kobach v. United States Election Assistance Commission. The upshot of this opinion, if it stands on appeal, is that states with Republican legislatures and/or Republican chief election officials are likely to require documentary proof of citizenship," reports Rick Hasen.

That case looks weak. But with Federalist Society jurists sprinkled throughout the judiciary, who can say?

On the state level Wisconsin and Ohio are another front of the war on voting.

Since 2011, "Scott Walker and his right-wing Wisconsin GOP legislative lieutenants - - for the second time since their ascendancy in 2011- - have passed legislation to cut the hours of in-person absentee voting," reports Jim Rowen. "The desired outcome - - abetted by the GOP-initiated Voter ID statute - - is to tilt elections and embed GOP power by obstructing ballot-box access in cities with large populations of minority, transit-dependent, Democratic-leaning voters. This coordinated, one-party manipulation of state power for partisan and constituencies' advantage should be slapped down hard and overturned without equivocation by state courts to ensure unobstructed voting in Wisconsin."

Rowen, civil rights activists and citizens are calling for federal Voting Rights oversight to protect Wisconsin voters against the Republican political power structure aiming to determine who is able to vote in Wisconsin through a raft of legislation that appears unlawful under both the federal and Wisconsin constitutions.

Voting Rights Act Fix

In Congress, legislation is being considered that appears to prohibit the Voting Rights Act from being used against state voter obstruction laws such as Wisconsin's photo voter ID and other anti-voting laws.

Ironically, this legislation is meant to repair the Voting Rights Act, gutted by the Supreme Court.

The Voting Rights Act (VRA) legislation, like the judicial and executive response, should single out and challenge state efforts using IDs as a tool to determine who gets to vote.

"The Voting Rights Act itself has been called the single most effective piece of civil rights legislation ever passed by Congress," reads the U.S. Dept. of Justice site.

This is precisely why five GOP justices targeted the VRA in Shelby v. Holder, despite as Judge Posner would note today, an extensive empirical record.

Writes Justice Ginsburg in dissent:

In the long course of the legislative process, Congress 'amassed a sizable record.' Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 205 (2009) . See also 679 F. 3d 848, 865–873 (CADC 2012) (describing the “extensive record” supporting Congress’ determination that “serious and widespread intentional discrimination persisted in covered jurisdictions”). The House and Senate Judiciary Committees held 21 hearings, heard from scores of witnesses, received a number of investigative reports and other written documentation of continuing discrimination in covered jurisdictions. In all, the legislative record Congress compiled filled more than 15,000 pages. H. R. Rep. 109–478, at 5, 11–12; S. Rep. 109–295, at 2–4,15. The compilation presents countless “examples of flagrant racial discrimination” since the last reauthorization; Congress also brought to light systematic evidence that “intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that section 5 preclearance is still needed.” 679 F. 3d, at 866.

Scott Walker and the Republicans never campaigned on it, and Wisconsin is inflicted by an underground political movement that has seized Wisconsin government and is attempting to disenfranchise the people who comprise the state.

The U.S. Dept. of Justice must step in to protect the rights of the Wisconsin people as guaranteed in the Fourteenth, Fifteenth and Twenty-Fourth Amendments to the United States Constitution, and pursuant to Section Two of the Voting Rights Act: Enforce the Fifteenth Amendment to the Constitution of the United States.

Fed Appellate Judge Recants: We Blew Voter ID Opinion

Authoring Judge of Voter ID case recants

Republican Party Voter Obstruction Project Could Be Heading for Trainwreck

Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit (1981-present) is a sitting justice who writes a column for Slate Magazine and regularly intones on the abundant rightwing, judicial idiocies of our time.

In an amazing, audacious and perhaps bizarre interview featuring Posner and Mike Sacks (Host/Producer with HuffPost Live) first reported by Rick Hasen, Posner has recanted his 2007 decision in Crawford heard before the U.S. Court of Appeals for the Seventh Circuit, and authored by Posner, affirmed by the U.S. Supreme Court in 2008.

 "The purpose of the Indiana law is to reduce voting fraud, and voting fraud impairs the right of legitimate voters to vote by diluting their votes," Judge Richard Posner wrote in his majority opinion in 2007, affirmed by the U.S. Supreme Court in CRAWFORD v. MARION COUNTY ELECTION BD. (Nos. 07-21 and 07-25) (2008).

Posner has now publicly recanted his opinion.

The Brad Blog reports, "This is nothing less than remarkable. The 7th circuit court judge who wrote the majority opinion in the landmark Crawford v. Marion County Election Board case, has now admitted he got it wrong! 'I think we did not have enough information," Judge Richard Posner said in remarks today. "If the lawyers had provided us with a lot of information about the abuse of voter identification laws, this case would have been decided differently.'"

Posner made his comments in an interview with Mike Sacks discussing jurisprudence and Posner's new book, Reflections on Judging (Harvard University Press, 2013).

Writes Hasen:

In response to Mike Sacks’s questions about whether Judge Posner and the 7th circuit got it wrong in Crawford case, the one upholding Indiana’s tough voter id law against constitutional challenge (Posner says):

'Yes. Absolutely. And the problem is that there hadn’t been that much activity with voter identification. And … maybe we should have been more imaginative… we…. weren’t really given strong indications that requiring additional voter identification would actually disfranchise people entitled to vote. There was a dissenting judge, Judge Evans, since deceased, and I think he is right. But at the time I thought what we were doing was right. It is interesting that the majority opinion was written by Justice Stevens, who is very liberal, more liberal than I was or am ... But I think we did not have enough information. And of course it illustrates the basic problem that I emphasize in book. We judges and lawyers, we don’t know enough about the subject matters that we regulate, right? And that if the lawyers had provided us with a lot of information about the abuse of voter identification laws, this case would have been decided differently.'

Here’s the quote from Posner’s book, which Mike Sacks flashed on the screen: 'I plead guilty to having written the majority opinion (affirmed by the Supreme Court} upholding Indiana’s requirement that prospective voters prove their identity with a photo id—a law now widely regarded as a means of voter suppression rather than fraud prevention.'

The repercussions for protecting voter rights of Americans against the Republican and Tea Party are stunning.

The whole nationwide Republican Party project of obstructing the voting of Americans could be in dire jeopardy.

This is because Crawford is the landmark case that, for example, the Wisconsin DoJ, Scott Walker and even the historically (and formerly) non-partisan Wisconsin Legislative Reference Bureau (and every other GOP state hack) have hyped (erroneously) as the controlling legal case on challenges to the GOP's photo voter-obstruction statutes.

The Crawford case was challenged as unconstitutional on its face, so no evidence was presented demonstrating how voters were obstructed.

This lack of the evidence will not be a problem in Wisconsin.

In Wisconsin, two federal challenges to the state Voter ID law are set to heard on November 4: Frank v. Walker, (Case 11cv1128), (U.S. District Court for the Eastern District of Wisconsin) and Jones et al v. Deininger et al (Case 2:12-cv-00185), (U.S. District Court for the Eastern District of Wisconsin).

There is a mountain of social scientific evidence accumulated in Wisconsin Courts in state cases and by the federal plaintiffs demonstrating how voters were intended by this GOP legislation and the practice of the legislation to be obstructed from voting.

Look for a federal decision finding that Act 23, Wisconsin's Photo Voter ID law, is discriminatory and not supported by valid neutral justifications.

Mike Sacks interview with Judge Richard A. Posner: