NOTHING FRIGHTENS today’s Republican Party quite like the voters. Before the 2012 elections, GOP lawmakers in statehouses across the country tightened voter identification laws with one goal in common: to suppress turnout on Election Day among likely Democratic voters, especially minorities and the poor. It didn’t work.
Now, harking back to the days of Jim Crow, they are at it again. In Arizona and Kansas, GOP officials are moving to adopt a two-tiered voting system, the effect of which would be to disenfranchise thousands of voters. The ploy relies on requiring birth certificates, passports and other documents that establish proof of citizenship in order to register to vote in state and local elections. Such documents are not necessary to register for federal elections.
"Additional qualifications" to vote are not in the Wisconsin Constitution, but just the same are derived from the text, say the GOP and Wisconsin Legislative Reference Bureau in a new theory intended to disenfranchise African-Americans, college students, the poor, the elderly and homeless, disaffected veterans.
The Wisconsin Legislative Reference Bureau's (LRB) Bruce Hoesly, Revising Attorney/Code Editor, is spouting new Republican propaganda again.
Not content to parrot the disingenuous Republican line in its use of the declining-in-judicial-currency Crawford v. Marion County Election Board (2008) decision, the LRB has launched more partisan spin in its new page on Wisconsin's Constitutional voting rights webpage, Suffrage.
The Republican Party propaganda states as settled law, the interpretation of a Wisconsin appellate court panel in May 2013 rejecting a facial challenge to the Wisconsin Photo Voter ID law, Act 23.
Wisconsin citizens' right to vote in jeopardy by the GOP's Act 23 face a law that:
- Remains enjoined
- Is under appeal to the Wisconsin Supreme Court
- Is under challenge in two federal cases set for trial for November 4, 2013
The LRB adopts GOP-friendly constitutional positions, though its reference in its new Suffrage annotation is anything but settled.
The annotation reads from a 1856 case:
Cothren, State ex rel. Knowlton v. Williams, 5 Wis. 308, contains a general rule for election law cases addressing constitutionality under a facial 'additional qualifications' challenge: whether the challenged requirement or procedure allows election officials 'to ascertain whether the person offering to vote possessed the qualifications required.' The legislature may impose such requirements or procedures because the legislature has a legitimate interest in preserving the integrity of elections. The general rule is made especially clear in the Cothren court's statement that the legislature may demand 'such proof' from potential voters 'as it deems requisite' for this purpose. League of Women Voters of Wisconsin Education Network, Inc. v. Walker, 2013 WI App 77, ___ Wis. 2d ___, ___ N.W.2d ___, 12-0584.To translate, the LRB is asserting that the government has the authority to enact laws that are additional constitutional qualifications that are not listed in Section 2 of ARTICLE III - SUFFRAGE of the Wisconsin Constitution.
The LRB is ignoring that the League case is under appeal in state and federal court, is enjoined; and anyway, Cothren, State ex rel. Knowlton v. Williams reads in part: "an act of the legislature which deprives a person of the right to vote, although he [sic] has every qualification which the constitution makes necessary, cannot be sustained."
Surly, 100,000s of qualified, registered voters not being able to present GOP-crafted IDs demonstrates an undue burden, just as GOP intends.
The GOP did not attempt to present a wide array of acceptable IDs that almost every citizen has (as some states do) when they narrowly crafted the range of IDs in 2011 to defeat the specter of in-person voter fraud, though the legislature cannot point to one case of in-person voter fraud out of millions of votes cast.
The Wisconsin Legislative Reference Bureau (LRB) is not intended as a Republican Party propaganda outlet. But this is the new Wisconsin, agencies serve the Party and favored citizens should have an easier time when voting than non-favored.
The LRB page states, it is a "nonpartisan, professional, and confidential bill drafting, legal publishing, research and library services to the legislature and the public."
Reads a brief LRB history:
Since its establishment as the first professional, nonpartisan drafting and research services agency for a state legislature, the LRB has been committed to maintaining high standards of quality and to providing thorough and expeditious drafting and reference services for the Wisconsin State Legislature.
Each chief has seen the bureau through the changes that are inevitable with the passage of time. However, each has also maintained continuity with the past, holding fast to the traditions of quality, efficiency, and nonpartisanship that were established with the agency more than 100 years ago.
Incidentally, Wisconsin appellate Justices Lundsten, Higginbotham, and Blanchard in the League opinion that Hoesly presents as settled law do not relate the text of Act 23 to the 100,000s of Wisconsin citizens like 86-year-old Ruthell Frank who would report to the polls as Frank has for over 60 years in Brokaw, Wisconsin and now be told she is not qualified to vote under Act 23, because she does not have the additional qualification of a driver's license or other GOP-prescribed ID.
Under this reasoning if the GOP legislature and GOP Governor pass a law that says photo IDs are now too easy to forge, in the interests of preserving the integrity of elections, a law stating a third party in your voting district has to attest to your identity and residence would survive a facial Wisconsin Constitutional challenge, though the hypothetical law would not be an amendment to Section 2 of ARTICLE III - SUFFRAGE of the Wisconsin Constitution.
The League opinion notes the following in a footnote as well:
In the same vein, given the League’s limited arguments in this case, we make note of, but see no reason to discuss further, the United States Supreme Court’s split opinion addressing a facial challenge, under the federal constitution, to an Indiana law requiring photo identification to vote. See Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 187, 189, 200 (2008). Crawford involved allegations that the Indiana law “substantially burdens the right to vote in violation of the Fourteenth Amendment [of the U.S. Constitution]; that it is neither a necessary nor appropriate method of avoiding election fraud; and that it will arbitrarily disenfranchise qualified voters who do not possess the required identification and will place an unjustified burden on those who cannot readily obtain such identification.” Id. at 187. A plurality of the Court concluded that the evidence in the record was insufficient “to support a facial attack on the validity of the entire statute.” See id. at 189.Hey, you note that Crawford was argued alleging a federal constitutional violation, not a Wisconsin constitutional violation, so what again is its relevancy?
Ask around. Justices Lundsten, Higginbotham, and Blanchard blew this opinion in its hard-right decision (apparently written by a GOP law clerk) that is political and one in which the justices apparently self-consciously take the GOP line in an effort to write an opinion that the four GOP Wisconsin Supreme Court justices can use, if they have no sense of shame.
Thankfully, federal court may now offer protection for Wisconsin voters from the GOP voter obstruction project, and perhaps Frank v. Walker, (Case 11cv1128), and Jones et al v. Deininger et al (Case 2:12-cv-00185) will become landmark federal voting rights cases.