Showing posts with label voting rights. Show all posts
Showing posts with label voting rights. Show all posts

Apr 10, 2014

New Voting Rights Amendment Act Is Worse Than Nothing

Updated-Rick Hasen wants progressives to get agitated for the Voting Rights Amendment Act (VRAA).
(W)here are the public demonstrations to pass this desperately needed fix? Outside the minority community, which is pushing hard for the VRAA, where is the agitation? The voting rights issue seems to have fallen off the radar screen, even though the Roberts court's reasoning in the Shelby County case is just as indefensible as its reasoning in Citizens United and McCutcheon in the campaign finance arena.
Here's why the lack of political action for the Voting Rights Amendment Act (VRAA).

The VRAA sucks.

The VRAA actually enshrines one of the major state voter obstruction laws that Republicans use to obstruct minority voters, among other voters: Voter ID statutes. Moreoever, passage of the VRAA would torpedo many of the legal federal challenges to the GOP voter ID laws.

Nice way to mark 50th anniversary celebration of the Civil Rights Act. Maybe we'll have better luck next year with the 50th anniversary celebration of the Voting Rights Act.

Anniversaries and sentiment are needed, but the Republican Party is forever busy with new schemes, a phenomenon that the Voting Rights Act of 1965 was intended to address.

"About one month after the Shelby decision, Republicans in North Carolina pushed through a package of extreme voting restrictions, including ending same-day registration, shortening early voting by a week, requiring photo ID, and ending a program that encourages high schoolers to sign up to vote when they turn 18," writes Dana Liebelson.

The Voting Rights Amendment Act of 2014 reads: Section 3(c) of the Voting Rights Act of 1965 (42 U.S.C. 1973a(c)) is amended by striking ‘‘violations of the fourteenth or fifteenth amendment’’ and inserting ‘‘violations of the 14th or 15th Amendment; violations of this Act (other than a violation of section 2(a) which is based on the imposition of a requirement that an individual provide a photo identification as a condition of receiving a ballot for voting in an election for Federal, State, or local office) ... ."

Hasen wants people to hit the streets for this crap?

 Derick T. Dingle writes, "Legal scholars found the voter ID provision as a gaping hole in the law (HR 3899), avoiding one of the major voter suppression issues of the day."

Hasen writes, "It's about time for Congress to pass some new laws protecting voting rights, and it's high time – right now – for us to dare the supreme court to strike even more of them down."

Maybe if we double-dare the U.S. Supreme Court it will back down from ever disenfranchising Americans again because the five GOP justices really care what the American people think, and they cherish civil rights.

Jan 18, 2014

Voter ID Laws Are GOP Weapons Protected in the Voting Rights Act Amendment

Stop voting and quit trying to pass your
selves off as real Americans, says GOP.
Get the message.
Update: North Carolina NAACP Blasts VRA Amendment - "A preliminary examination of the proposed provisions of this legislation convinces us that it falls woefully short of what is needed to protect all people from race-based efforts to curtail the voting potential of people of color."

From Talking Points Memo comes a link to a study on GOP Voter Obstruction that, to borrow from the late Stephen Jay Gould, establishes the fact of Repulbican Party voter obstruction "so overwhelmingly supported by the evidence that it would be perverse to withhold provisional assent."

Notes Tova Andrea Wang:
Important new empirical research published in December in the journal Perspectives on Politics by Keith G. Bentele and Erin E. Obrien at the University of Massachusetts-Boston, however, shines a bright light on just how crass this effort has been and how clear the motives of the Republican state lawmakers have been in proposing and passing laws that would deny eligible citizens the right to vote.

See Jim Crow 2.0? Why States Consider and Adopt Restrictive Voter Access Policies by
Keith G. Bentelea and Erin E. O'Briena.

This suggests that the new Voting Rights Act Amendment ought not protect states' restrictive voter ID laws, as the proposed Amendment does now, sneaked into the act by Rep. James Sensenbrenner (R-White People).

Rational policy making from Washington is rare, fraudulent action by Sensenbrenner is common.

Abstract - from Bentelea and O'Briena:
Recent years have seen a dramatic increase in state legislation likely to reduce access for some voters, including photo identification and proof of citizenship requirements, registration restrictions, absentee ballot voting restrictions, and reductions in early voting. Political operatives often ascribe malicious motives when their opponents either endorse or oppose such legislation. In an effort to bring empirical clarity and epistemological standards to what has been a deeply-charged, partisan, and frequently anecdotal debate, we use multiple specialized regression approaches to examine factors associated with both the proposal and adoption of restrictive voter access legislation from 2006–2011. Our results indicate that proposal and passage are highly partisan, strategic, and racialized affairs. These findings are consistent with a scenario in which the targeted demobilization of minority voters and African Americans is a central driver of recent legislative developments. We discuss the implications of these results for current partisan and legal debates regarding voter restrictions and our understanding of the conditions incentivizing modern suppression efforts. Further, we situate these policies within developments in social welfare and criminal justice policy that collectively reduce electoral access among the socially marginalized.
After the GOP retook the Wisconsin legislature in 2010, one of the Party’s first bills introduced in 2011 is the photo ID bill that would "mean folks without driver’s licenses – disproportionately poor, minority, or elderly, would not be able to vote." (Neil Heinen, WISC TV)

Wisconsin is not alone, and voter obstruction laws have only increased since Wisconsin's voter obstruction operative, Reince Priebus, took over as the RNC National Chair in 2011.

Jan 17, 2014

Voting Rights Amendment Act Should Be Renamed the Voter ID Obstruction Protection Act

Update II:The exemption for voter ID laws was written to win the support of House Majority Leader Eric Cantor and other Republicans. The legislation strengthens Section 3 of the VRA, which has been described as the Act’s “secret weapon.” Under Section 3, jurisdictions not covered by Section 4 could be 'bailed-in' to federal supervision, but plaintiffs had to show evidence of intentional voting discrimination, which is very difficult to do in court. Under the new Section 3 proposal, any violation of the VRA or federal voting rights law – whether intentional or not – can be grounds for a bail-in, which will make it far easier to cover new states. One major caveat, again, is that court objections to voter ID laws cannot be used as grounds for “bail-in”under Section 3.) - Sharon McClosky in The Progressive Pulse.

The legislation strengthens Section 3 of the VRA, which has been described as the Act’s “secret weapon.” Under Section 3, jurisdictions not covered by Section 4 could be “bailed-in” to federal supervision, but plaintiffs had to show evidence of intentional voting discrimination, which is very difficult to do in court. Under the new Section 3 proposal, any violation of the VRA or federal voting rights law – whether intentional or not – can be grounds for a bail-in, which will make it far easier to cover new states. (One major caveat, again, is that court objections to voter ID laws cannot be used as grounds for “bail-in” under Section 3.)
This exemption for voter ID laws was written to win the support of House Majority Leader Eric Cantor and other Republicans. - See more at: http://pulse.ncpolicywatch.org/2014/01/16/bipartisan-proposal-to-amend-the-voting-rights-act/#sthash.FYh5tURQ.dpuf
This exemption for voter ID laws was written to win the support of House Majority Leader Eric Cantor and other Republicans. - See more at: http://pulse.ncpolicywatch.org/2014/01/16/bipartisan-proposal-to-amend-the-voting-rights-act/#sthash.FYh5tURQ.dpuf

Update: That the idiot caucus in the GOP hates the bill is no cause for support for this codification of the GOP's voter ID obstruction project, a project has yielded results.

The return of the Voting Rights Act? Try the championing of state Voter ID laws, the go-to voter obstructionist tool of the Republican party.
---
Voting Rights Amendment Act of 2014: Section 3(c) of the Voting Rights Act of 1965 (42 U.S.C. 1973a(c)) is amended by striking ‘‘violations of the fourteenth or fifteenth amendment’’ and inserting ‘‘violations of the 14th or 15th Amendment; violations of this Act (other than a violation of section 2(a) which is based on the imposition of a requirement that an individual provide a photo identification as a condition of receiving a ballot for voting in an election for Federal, State, or local office) ... ."

The Voting Rights Amendment Act (H.R.3899) should be renamed the Voter ID Obstruction Protection Act, which is why Rep. Sensenbrenner when he introduced the bill January 15, he made sure to note the legislation includes "provisions that continue to permit states to enact reasonable photo identification laws" in an act that would pit Sections of the Act against in each other.

From Sensenbrenner's website:
Voting Rights Amendment Act of 2014
Section by Section Description of VRA Draft Legislation
Section 2.
Violations Triggering Authority Of Court To Retain Jurisdiction
--
Provides that a court can “bail-in” a State or political subdivision based on a discriminatory result by amending Section 3(c) of the Voting Rights Act (VRA) to include violations of Section 2 of the VRA and violations of any Federal voting rights law that prohibits voting discrimination against racial and language minorities.It carves out from the new standard Section 2(a) cases that are based on a photo identification on requirement
Well, at least Sensenbrenner did not say "common sense" measures to obstruct voters this time, a tiresome phrase used by Scott Walker too often for my taste.

H.R.3899 is a terrible bill.

This is because HR 3899 crafts language of the section 4 formula of the Voting Rights
Act (VRA) narrowly, specifying as Ari Berman points out that only states "with five violations of federal law to their voting changes over the past fifteen years will have to submit future election changes for federal approval."

Resurrecting Section 5 with an extraordinarily weak formula in Section Four is tantamount to getting raped five times before getting treatment, support and help from law enforcement, a terrible joke of the VRA, though the D.C. commetariat quietly applauds this bipartisan exercise in codifying state photo voter ID laws.

Should this bill be passed, one of Wisconsin's two federal consolidated challenges to the GOP-crafted Wisconsin Act 23, the photo voter id law is imperiled if the Voting Rights Amendment Act (H.R.3899) (2014) were to become law. The trial is now under submission to Judge William M. Conley, Western District of Wisconsin.

Maybe the Wisconsin case will make past the five GOP justices on the U.S. supreme court when it gets there.

Judge William M. Conley, who heard Frank v. Walker, (Case 11cv1128) and
League of United Latin American Citizens of Wisconsin v. Deininger (Case 2:12-cv-00185) in Wisconsin in a consolidated trial in November 2013 is taking the cases under submission (research, consideration and an intellectual enterprise to arrive at an order and opinion) that will involve a massive judicial undertaking.
 
In the Wisconsin League case, which is the first case to use Section 2 since Shelby County v. Holder, civil rights plaintiffs argues "The evidence conclusively demonstrates that the burdens of Act 23 fall disproportionately on voters of color. Two different expert studies introduced at trial, using two different sound methodologies, confirm Act 23’s substantial racially disproportionate impacts. As plaintiffs’ expert Leland Beatty concluded, 'Wisconsin minority voters are at a substantial disadvantage under Wisconsin’s voter ID law, and ... the effect of that law imprints an unavoidable disparate impact on minority election participation.'"

Section 2 of the Voting Rights Act in the League case may not find relief from the new Voting Rights Amendment Act (H.R.3899) which in the words of Sensenbrenner, "includes strong, nationwide anti-discrimination protections and continues to permit states to enact reasonable voter-ID laws."
  
Rep. John Conyers (D-Michican) and Senate Judiciary Committee Chairman Patrick Leahy (D-Vermount) demonstrate again why politicians fail to understand that when 100,000s of citizens are obstructed from voting, and their new legislation does nothing to prevent this, this may have been living the high life a bit too long.

"Our sole focus throughout this entire process was to ensure that no American would be denied his or her constitutional right to vote because of discrimination on the basis of race or color," Patirck Leahy said in a statement, cited by Steve Benen and many others across the nation, all of whom ignore the plain language of HR 3899 enshrining state Photo Voter ID laws: "other than a violation of section 2(a) which is based on the imposition of a requirement that an individual provide a photo identification as a condition of receiving a ballot for voting in an election for Federal, State, or local office."

As Derick T. Dingle writes, "Legal scholars found the voter ID provision as a gaping hole in the law (HR 3899), avoiding one of the major voter suppression issues of the day."

On the up side, the League challenge is an "as-applied" challenge as opposed to the "facial" challenge in the Crawford vs. Marion County Board of Elections, as noted by Earnest A. Canning in the Brad Blog.

The problem is Section 2 is not much help to the Wisconsin case if the Voting Rights Amendment Act (H.R.3899) permits state photo voter ID laws, the favorite voter obstruction tool of the Republicans, as the case winds its way through a hostile GOP-heavy, federal judiciary.

The other federal Wisconsin challenge to the GOP voter obstruction Act makes Constitutional Equal Protection, Twenty-Fourth and Fourteenth Amendment arguments, irrespective of the Voting Rights Act.

Under Scott Walker, "Wisconsin has long been recognized as the Selma of the North and this case illustrates just why the Midwestern state bears this harrowing distinction,” said James Eichner, Managing Director for Programs, Advancement Project. “Wisconsin’s discriminatory voter ID law is virtually indistinguishable from Jim Crow laws of earlier eras which required poll taxes, property requirements, literacy tests and other contrived, racist measures designed to prevent African Americans from voting."

Walker is getting some company from Democratic congressmen. 

Oppose Voting Rights Amendment Act; It's a Sham

Update: Don't worry Republicans, state voter obstruction laws are safe.

Voting Rights Amendment Act of 2014: Section 3(c) of the Voting Rights Act of 1965 (42 U.S.C. 1973a(c)) is amended by striking ‘‘violations of the fourteenth or fifteenth amendment’’ and inserting ‘‘violations of the 14th or 15th Amendment; violations of this Act (other than a violation of section 2(a) which is based on the imposition of a requirement that an individual provide a photo identification as a condition of receiving a ballot for voting in an election for Federal, State, or local office) ... ."
Translated, GOP state photo voter ID laws have been carved out as an exception by the Republicans, and just because the GOP obstructs voters there is no reason for this be considered a violation of the new and fetid VRA.

The Voting Rights Amendment Act, H.R.3899, is a con unprecedented in the modern fight for the right to vote.

The bill would allow for state GOP-crafted voter obstruction laws to pass muster under the Act, language which drew the NAACP's guarded statement that the "NAACP appreciates that the U.S. Congress has made a bipartisan effort to update the Voting Rights Act, however we have serious concerns about the ability of some provisions in this bill to protect ALL voters from discrimination at the polls."

This bill should be opposed, and a real act with teeth that codifies that voting is a federal fundamental right should be passed.

Such as an act exists; it's call the Pocan-Ellison Right to Vote Amendment. Republicans hate it because it protects the right to vote against GOP efforts to obstruct it.

Ari Berman writes: "Voting rights supporters will argue, justifiably, that the new Section 4 formula does not apply to enough states and wrongly treats voter ID laws differently than other discriminatory voting changes. Despite these flaws, the legislation represents a significant improvement over the disastrous post-Shelby status quo, which has seen states like North Carolina and Texas rush to pass or implement blatantly discriminatory voting restrictions after being freed from federal oversight." 

Berman's argument is that state voter obstruction laws are still legal, voter obstruction will occur, and we should still welcome this sham.

Talk about lowering the bar.

Call your congressional representative and register your opposition today. Our congressman here in southcentral Wisconsin, Mark Pocan, can be reached at Rep. Pocan.

Other representatives can be reached through the House of Representatives home page.

In the face of the Republican War on Voting, do some Democrats really believe the GOP has surrendered and suddenly morphed into voting rights champions?

Don't Trust James Sensenbrenner on Voting Right Act

James Sensenbrenner - Protector of
Republican Voter Obstruction
Update: Pennsylvania Judge Strikes Down GOP's New Voter ID Law, the injunction and opinion is at Applewhite et al v. Pennsylvania.

American democracy—Freedom and the right to vote, the light of the world

No kids, in America the Republican Party is hostile to these rights. For the GOP voting is a privilege reserved for those who vote the correct way, and the GOP continues its assault against the fundamental right of our democracy.

Now, the Republican Party is trying to codify and enshrine its state-level voter obstruction project that it says is perfectly in keeping with its 'fix' to the Voting Rights Act.

The national press is maintaining the pretension that Rep. James Sensenbrenner (R-White People) cares about fixing the Voting Rights Act eviscerated by Sensenbrenner's GOP colleagues on the U.S. Supreme Court last year in Shelby County v. Holder.

Several liberal writers think it's the only shot at getting a weak repair to the Voting Rights Act through Congress. This effort is a crock.

The Republican voter obstruction project has as one of its primary tools: GOP-crafted state voter ID laws enacted with unanimous GOP support and unanimous opposition from civil rights groups and the Democratic Party.

Voter ID laws make it more difficult to vote for disaffected veterans, minorities, colleges students and other demographics not aware of their duty to vote Republican.

Such state voter obstruction laws are the policy rationale behind the Voting Rights Act (1965) and its reauthorizations.

But Sensenbrenner loves voter obstruction, Voter ID laws, slashing early voting, gerrymandering, and other GOP tricks to keep people from voting.

Steve Benen, writing for MSNBC, is one of the writers who likes to pretend Sensenbrenner is a champion of voting rights, while noting this new 'fix' of the Voting Rights Act is a bill that Sensenbrenner acclaims "includes strong, nationwide anti-discrimination protections and continues to permit states to enact reasonable voter-ID laws. Therefore, it prevents racial-discrimination and gives states the ability to address voter fraud."

That there is virtually no in-person voter fraud is, in the minds of Benen and Sensenbrenner, of no consequence.

As for Voter ID laws, what's "reasonable" in Sensenbrenner's mind? Texas and Wisconsin's restrictive Voter ID laws are.

Here's what Sensenbrenner had to say about Texas in August last year: "

There are of course serious efforts to protect voting: The Pocan-Ellison Right to Vote Amendment.

Sensenbrenner supporting this mega voting rights guarantee, and going against his Party's voter obstruction project is as likely as Sarah Palin winning a Nobel Prize in physics.

We noted here last November that in 2005-06, Sensenbrenner was chair of the House Judiciary Committee so he likes to preen that he was the champion of the renewal of the various sections of the Voting Rights Act that passed 390-33 in the House and 98-0 in the Senate and, history should remember, was signed into law by President George W. Bush. What guts.

In fact, Bush did one hell of a job of conjuring LBJ in the White House, and as noted by Gary May and Joseph Morgan Kousser cajoled Congress into passing a 25-year reauthorization in the Republican-controlled Congress.

Writes May:
(D)uring his second term Bush found it necessary to court black voters. The president's slow response to the devastation caused by Hurricane Katrina, which hurt blacks disproportionally and revealed again the presence of widespread poverty in the South, damaged Bush's standing. In an attempt to recoup his political fortunes as congressional elections approached in 2006, Bush turned to the black community. On a trip to Memphis visited the Loraine Motel and stood on the balcony where Martin Luther King was assassinated in 1968. He also agreed to address the NAACP's annual convention, which he had ignored for six years. There Bush was received coolly but won a standing ovation when he expressed his support for the Voting Rights Act, urging congress to enact it then, one year before it was due to expire. This was not simply rhetoric. Behind the scenes Bush's staff encouraged Republicans, who now controlled both houses of Congress, to extend the Act. And this time the Republican congressional leadership in both the House and Senate were receptive to such appeals because if you weren't a southerner, there was no political payoff for attacking the now-iconic Voting Right Act. (pp 273-274)
So, House Judiciary Committee Sensenbrenner was going to defy Bush and Rove on the Voting Rights Act reauthorization of 2006? Right.

And Sensenbrenner is now going to declare war on the GOP's war on voting? Right.

Dec 13, 2013

Wisconsin 2014 Election Dates Geared to GOP as GOP Wages War on Voting

Big government is pretty big when it obstructs your right to even vote

College students will get an extra wrench thrown in the 2014 election as Scott Walker looks for that extra advantage that will get Walker the majority of the general election vote.

Add up all the GOP voter suppression efforts, and the GOP hopes this equals a victory in a close race.

Election dates in 2014 are being circulated now by municipal election clerks around the state.

The Fall Election Primary is being held August 12, instead of the traditional September, as most college students will not be moved in on August 12 for the Fall Semester, and therefore cannot register and vote, which will suppress the total college vote in the November 4 general elections. This is courtesy of the GOP which passed a law in 2011 moving the Fall primary date.

Every little bit of voter obstruction helps.

The GOP also passed legislation in 2011 that makes residency requirements 28 days, instead of 10 days.

This year the GOP wants to attack early voting, and force cities, towns and villages to stop all early voting on weekends and nights in an effort to obstruct voter registration and voting drives in Wisconsin cities.

The 2014 election dates are:

February 18 - Spring Election Primary

April 1 - Spring General Election

August 12 - Fall Election Primary

November 4 - Fall General Election

And the crown jewel of the GOP voter obstruction, Photo Voter ID, remains enjoined as violative of the Wisconsin Constitution, and faces a potentially landmark challenge in federal court as well.

Dec 1, 2013

Book Review: Richard Posner's Path Not Taken

Richard Posner's Reflections on Judging
(Harvard University Press. 2013)
Richard Posner's book Reflections on Judging (Harvard University Press. 2013) is an apologist account of his years on the bench.

The scholar turned judge wants to think that he has been a thoughtful and prudent jurist but on major occasions that he had the opportunity to be on the right side of history, he balked.

The depersonalization, the dehumanization, of the citizens by the court has been furthered under his judgeship. And he doesn't even seem to realize it on reflection.

Richard Posner is one of some 187 federal appellate judges.

He was appointed to the Court of Appeals for the Seventh Circuit by Ronald Reagan in 1981 and still serves today.

Appointed along with John Shabaz (District Court, Western District of Wisconsin) and a host of ideological nominees to the federal judiciary by Reagan, Posner's assumption to the bench came during the first fruit bore by the Federalist Society, GOP Party hacks like Shabaz, and the U.S. Department of Justice that became a breeding ground for those seeing the judiciary as a means to power ... period, right-wing judicial activists. Witness Chief Justice John Roberts.

Posner skated around Reagan's fronting for the hard right, maybe out of loyalty.

The difference between Shabaz, a genuine misanthropist, and Posner is the difference between open contempt and indifference toward fellow citizens.

Richard A. Posner takes judicial policy making seriously, but reading Reflections on Judging, while aware of Posner's intellect is an exercise in disgust.

There are less thoughtful approaches to American jurisprudence in our society today; there are malicious approaches evolving in unpredictable ways, yielding results threatening the foundation of America, the expansive liberties of her citizens.

Posner seems unmindful as a judge, and amicable and generous as an author.

Posner attempts to explain to the lay reader some elements of appellate jurisprudence, what makes opinion writing a useful enterprise, and deserves praise for the result. I mean how many citizens concern themselves with what the judiciary does, at least since the grassroots movement against Robert Bork in 1987.

In reading Posner one wonders if he is unaware of the injury jurisprudence can inflict unto the human beings constituting the citizenry of the U.S.

It's easy to understand why Posner cites Robert H. Jackson and Louis Brandeis as jurists and intellectuals in history whom he admires. Less easy to explain why Posner never acted with the same thoughtful manner. Reflections is no help here.

But Posner was never a civil libertarian; he essentially did nothing for social justice in life and as an academic, so it's no surprise in reading Reflections that Posner labored over his work as a judge, mindful that that the law serves entities in this country—human beings—while reaching results that are both appalling and illogical.

Posner advocates the approach of  "legal realism" in judging both at the appellate and trial level.

In Reflections on Judging, Posner explains why "legal formalism," "originalism," "textual originalism," and other given names for fallacious approaches to judging, as epitomized by Justice Antonin Scalia, are "gotcha jurisprudence," (p. 182) and not dispassionate, penetrating examinations of the law.

Posner explains in the same paragraph in Reflections.

Justice Scalia is one of the most politically conservative Supreme Court Justices of the modern era—anyone doubting this should read his vitriolic partial dissent in Arizona v. United States—and he is the intellectual leader of the conservative Justices on the current Supreme Court. Yet he claims that his judicial votes are generated by an objective interpretive methodology (the only objective methodology, he claims) and that because it is objective, ideology, including his own fervent ideology, plays no role. Obviously statutory text itself is not inherently liberal or conservative. But textualism is conservative. A legislature is thwarted when a judge refuses to apply its handiwork to an unforeseen situation that is encompassed by the statute's aim but does not make a smooth fit with its text. Ignoring the limitations of foresight, and also that statute is a collective product that may leave many questions of interpretation to be answered by the courts because the enacting legislators didn't agree on the answers, the textual originalist demands that the legislature think through myriad hypothetical scenarios and provide for all of them explicitly rather than rely on courts to be sensible. Textual originalism is 'gotcha' jurisprudence. (p.182)

The jurisprudence of Scalia—dressed up as a quasi-scientific methodology—poses as an epistemological search in which appellate judges committed to originalism occupy an elevated perch, in Scalia's view, and to Posner's scorn.

Scalia poses, regaling in his perception capable of ascertaining the statute, where others refuse to see this dedication.

But Scalia and his statist, superstitious moralism often neglect the American citizen whom Scalia does not take seriously.

Reading Posner's Reflections, sure it's easy to think of Robert Jackson (pp 257-258) and other jurists' concern for the litigant in cases involving civil liberties, the citizen endowed with expansive rights against the state.

In Posner's Seventh Circuit as an example, we have brilliant jurists like Jackson, Diane Wood, Frank Easterbrook and of course Posner.

And the Seventh Circuit has also seen the worst of jurisprudence—for example, Wisconsin's late Judge John Shabaz who terrorized and abused criminal defendants and attorneys during his reign from 1981 to 2009.

In the Robert W. Kastenmeier U.S. Courthouse, federal magistrates often preceded Shabaz' arrival and would presumptively offer a manner of judicial succor, explaining to the courtroom in effect that Judge Shabaz would often bully attorneys and litigants for any or no reason.

Anyone sentient saw in Shabaz' willful, mean-spirited actions a fundamental misunderstanding of what a courtroom is supposed to represent in America, the rule of law as a shield against the cruel tyranny of the power of the state, of the judiciary.

Local Madison, Wisconsin, journalists wrote occasionally about Shabaz' misanthropy in astonishment, as many citizens who had become aware or experienced Shabaz waited and hoped for his retirement or death. This judge was a human repudiation of Article III of the Constitution.

Shabaz is worth mentioning here, not because his opinions were often overturned by the Seventh Circuit [though they were, especially in civil rights cases], rather because Shabaz' aspirations and personal manner are in direct opposition to Posner's.

We are led to believe that Posner is concerned with people, whom the law and the courts ought to serve.


I don't know if Posner knew about this situation in Madison, Wisconsin; I do believe he would have been appalled, but Posner deserves no praise for remaining blind.

Posner's legal realism leads to some consideration of what people are as citizens of the United States, as human beings.

That's a pretty low bar for a judge.

What this country has endowed its citizens with, rights, are the foundation supported by constant affirmation of citizens' humanity. How society lawfully treats human beings, what social scientific evidence demonstrate, and the thought experiments often heard at oral arguments are what could have made Posner a brilliant judge, had he chosen to go that way.

When Posner is not conversant about many topics, it bothers him, or so it is implied in Reflections. Still, Reflections, as edifying a book as it is, reads more like an aspiration of what Posner could have been as jurist, as against his record.

Consider one critical case on which we know Posner has erred badly, to which he admits failure of imagination and empathy, inhumanity, of ability to ascertain.

"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." (pp. 8485) [Crawford v. Marion County Elections Board (2008) was later disavowed by its author, Justice Stevens, after his retirement.]
 
The repercussions for protecting voter rights of Americans against the Republican and Tea Party in Crawford are stunning, but Posner offers only a weak rumination about how difficult gathering information can be in the modern world for federal litigation. 

This is not only a cop-out on Posner's part but clearly shows how weak he is on standing up for a citizen's rights in the face of the so-called justice system. The scholar sees so much as impenetrable. 

Posner asserts the complexity brought by advances in technological fields means that subject matter experts often have difficulty making a judge understand the salient issues. Posner, in other journals, has explained that he can't just give up and go home. He has to rule on what is before him.

Judges are, or should be, selected on the basis of their ability to sort through complex issues, so for Posner to argue that an issue before the court is too complex for him to understand is an abdication of the function of the court. Judges have an obligation to study an issue until they understand it. Surely a man of Posner's intellect can accomplish this. Judges have every expert at their disposal, analytical resources, clerks, libraries. Even in this position of privilege, Posner I swear comes across as whining.

Consider human empathy.

Without empathy, an element both Scalia and Posner find irrelevant, the rule of law dissolves as a protector and extension of the citizenry. So, we can understand Crawford in the context as a lack of empathy, as the civil rights movement reminded America voting is part of humanity.

A local Alabama or Mississippi judge hearing a case on a civil rights violation in 1963 could not render an opinion, the racist state power structures made this impossible. The same held true with most of the south, though federal appellate judges as John Minor Wisdom somehow managed to see through the suffocating cloak of racism during this period.

Consider a more contemporary case, Atwater V. Lago Vista (2001), in which a mother and her two young children, three- and five-years old, were pulled over, verbally abused, and arrested in front of gathering witnesses who all confirmed the same story: Young children became traumatized and cried, as their mother was arrested by a vicious police officer for a traffic violation.

"The question is whether the Fourth Amendment forbids a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine. We hold that it does not."
 —The Court 5-4

As for empathy. Justice Souter for the Court: "The arrest and booking were inconvenient and embarrassing to Atwater, but not so extraordinary as to violate the Fourth Amendment."

Inconvenient and embarrassing.

Justice O’Connor, with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, dissented:

The Fourth Amendment guarantees the right to be free from 'unreasonable searches and seizures.' The Court recognizes that the arrest of Gail Atwater was a 'pointless indignity' that served no discernible state interest, ... and yet holds that her arrest was constitutionally permissible. Because the Court’s position is inconsistent with the explicit guarantee of the Fourth Amendment, I dissent. ... The Court neglects the Fourth Amendment’s express command in the name of administrative ease. In so doing, it cloaks the pointless indignity that Gail Atwater suffered with the mantle of reasonableness. 
Posner would agree with Souter in this embarrassing case.

People really don't matter all that much, and we just cannot know so much about people under the law.

Posner is no Jackson or Brandeis; he could be but he simply does not allow himself to rise to the occasion.

Keeping his eye on the the prize, human beings with liberties guaranteed throughout the Constitution, makes the non-essential fall away.

I recommend Reflections as thoughtful admissions of failure.

Nov 11, 2013

93-year-old Testifies Against Wisconsin Voter ID Law at Trial

Carrie Healey reports that a 93-year-old woman, Lorene Hutchins, testified today at the trial challenging the GOP-passed Wisconsin photo voter ID law, Act 23.

Reports Healey:
"I feel there is a strategy to keep minorities and older people from voting,' the 93-year-old said, according to court transcripts. "Most of us who migrated to Northern states do not have birth certificates, a prerequisite for obtaining the photo ID required to vote. I’ve been voting since the 1940′s when I voted for Franklin Delano Roosevelt. It would be devastating to lose the right to vote now, after all these years.'

Hutchins was born at home in Mississippi because hospitals at that time did not accept black patients, and she did not receive a birth certificate.

Katherine Clark, Hutchins’ daughter, spent over $2,000 and several years to obtain birth certificates for both herself and her mother.
Hutchins testified in the case, League of United Latin American Citizens of Wisconsin v. Deininger (Case 2:12-cv-00185), one of two cases in the consolidated voting rights trial.

The League case is the first trial in the country post-Shelby County v. Holder using Section 2 of the Voting Rights Act after the U.S. Supreme Court gutted the Act (Section 4) last summer, as noted by The Advancement Project.

Wisconsin Gov. Scott Walker said he sees "no barriers" to voting; but $2,000 might not seem like a lot of money for Walker whose own salary, healthcare and pension have been funded by taxpayers since 1993.

Writes Healey: "Having watched her family brave angry mobs while trying to vote in Mississippi in the 1920′s, Ms. Hutchins now faces a more subtle, yet no less harmful, barrier to the ballot box," said Advancement Project Staff Attorney Leigh Chapman.

The potentially landmark voting rights trial in Milwaukee is expected to last about another week.

Oct 19, 2013

New Wisconsin Legislative Reference Bureau Propaganda on Suffrage

Update: A reader notes the discovery of phantom "additional qualifications" for voters in the Wisconsin Constitutions is consistent with GOP voter obstruction efforts in Kansas and Arizona where as the Washington Post notes:

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 pro-voter and anti-voter advocates, the contending parties, will not even present intermediate appellate constitutional interpretations as settled law in Wisconsin Voter ID cases, but the GOP line is good enough for the LRB.

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.

Not anymore.

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.

Texas Obstucts Women from Voting; Effort Similar to Wisc AG's Failed Suit

Civil rights violations are our business: GOP
Update: Barbara Arnwine and Eleanor Smeal explain the GOP's war on women voting: "The assault on voting rights is a naked attempt to suppress the votes of minorities, students, the elderly, and the poor. But don’t be fooled. This War on Voting is an essential part of the War on Women."

In 2008 Wisconsin's Republican Attorney General J.B. Van Hollen tried to push through the courts a new constitutional requirement to vote: An exact match of a voter's name on the databases of various government bureaucracies.

Ridiculous.

The GOP voter obstruction effort failed miserably, though Van Hollen later showed no shame in trying to stop our sacred right to vote, efforts for which Van Hollen will be well-compensated in the private sector at a cushy GOP firm, (Van Hollen is not seeking reelection in 2014.)

"Nothing in state or federal law requires that there be a data match as a prerequisite for a citizen's right to vote," Judge Maryann Sumi said in dismissing Van Hollen's lawsuit (J.B. Van Hollen v. Government Accountability Board (GAB) et al (2008)) that tried to use the Help America Vote Act (HAVA) as a voter suppression tool.

In October 2008, it was reported by WisPolitics that Reince Priebus (then Wisconsin and now national GOP Chair) and Wisconsin McCain-Palin co-chair Van Hollen met before and at the 2008 National Republican Convention in St. Paul to discuss this new voter obstruction effort which would was employed by the Van Hollen-headed Wisconsin Department of Justice during the 2008 presidential campaign.

Now, Texas is employing the Priebus-Van Hollen strategy to obstruct voting, requiring an exact and up-to-date name match on Photo Voter ID, per newly enacted Texas GOP law.

The New Civil Rights Movements notes: "Think Progress reports that as of November 5, Texans must show a photo ID with their up-to-date legal name. It sounds like such a small thing, but according to the Brennan Center for Justice, only 66% of voting age women have ready access to a photo document that will attest to proof of citizenship. This is largely because young women have not updated their documents with their married names, a circumstance that doesn’t affect male voters in any significant way. Suddenly 34% of women voters are scrambling for an acceptable ID, while 99% of men are home free."

Van Hollen had denied any contacts with the Republican Party and the McCain campaign about Wisconsin's invented 2008 voting rule in the GOP's failed lawsuit, a denial that was contradicted by WisPolitics‘ audio recording revealing Van Hollen promising this 2008 legal action to Priebus on alleged "voter fraud" during an address at the 2008 Republican National Convention held in St. Paul.

Texas GOP Attorney General Greg Abbott, Wendy Davis' likely opponent for governor in 2014, has had much to say about new voting requirements and other GOP obstruction schemes, now under challenge by the U.S. DoJ under Section 2 of the Voting Rights Act, to the chagrin of voting rights poseur and lede Republican bullshitter, James Sensenbrenner. Abbott is running the Reince Priebus playbook.

Writes Dave McNeely:


"In 2011, both houses of the Texas Legislature were controlled by large Republican majorities, and their redistricting decisions were designed to increase the Republican Party's electoral prospects at the expense of the Democrats," says the (legal) brief filed by Abbott's office, (defending Texas gerrymandering). "It is perfectly constitutional for a Republican-controlled legislature to make partisan redistricting decisions, even if there are incidental effects on minority voters who support Democratic candidates."

Abbott also accused Jose Garza, a lawyer for the Mexican American Legislative Caucus, of unethical behavior for telling Latino voters to go ahead to the polls even without the now-required photo ID in a Sept. 14 election in Edinburg to fill a city council vacancy.

It is "unethical for a lawyer to advise someone to violate Texas law," Abbott said. "Confusing and misleading Texans in order to create an unnecessary lawsuit is disgraceful."

Garza hotly shot back that he had never encouraged Texans to violate the law, but to cast provisional ballots if they can't get a photo ID. He said he thinks the law is unconstitutional, and if they are refused that would be grounds for a legal challenge.

"Do not stay home and allow a discriminatory law to suppress your vote and voice," Garza said. "That is my message to Edinburg's voters."
Abbott says he needs to stop voter fraud and ensure the integrity of Texas elections.

As the world looks at American politics, wondering vaguely if the US has lost its collective mind in allowing the Tea Party suicide caucus to threaten the world economy, it also cast dubious eyes on the American commitment to voting rights in a democracy, wondering in the words of Teresa Wiltz in The Guardian if this is "2013 or 1953?"

It's 1953, only worse.

In the words of Joel Bleifuss, editor of In These Times, enterprising and corrupt voter obstruction efforts by GOP operatives, including five sitting jurists on the U.S. Supreme Court judges, have in dismantling voter protections imposed on America a "gift to both the billionaire political hobbyists who gave us the Tea Party Congress and the noisy charlatans who push for cynical 'anti-voter-fraud' legislation that is crafted to suppress voter turnout."

Oct 15, 2013

Republicans Still Trying to Rig Elections in Wisconsin, Citizens Be Damned

Republicans say: Not qualified to vote
Update: Authoring Judge in Landmark Case Disavows His Former Support for Voter ID (Schwartz. NYT)

Doug Chapin, Rick Hasen and the Washington Post note new Republican efforts to micromanage Wisconsin elections right down to the poll worker, and continuing efforts to obstruct voters.

Republican legislative efforts to manage which voters get to vote were deemed unconstitutional in ongoing legal, civil rights fights that will likely continue for years across the nation.

Civil actions continue in Wisconsin state and federal courts, including two consolidated federal cases slated for trial on November 4.

Republicans will of course stick to the James Sensenbrenner-Scott Walker-GOP BS line that photo voter IDs are "common sense" measures to prevent voter impersonation fraud, though the GOP is fully aware no that virtually no voter fraud exists out of the 100s of millions of votes cast.

And potentially 100,000s of Wisconsin citizens could be disenfranchised were Wisconsin's voter ID law made operative in a high-turnout election like that in November 2014. That's in Wisconsin alone.

Chaos, confusion, voter frustration, long lines and anger are the predictable results, with voter disenfranchisement as the objective.

A voter presents a GOP-approved ID, two election inspectors (poll workers) check it for photo resemblance, date and signature and these new qualifications to vote are met.

Oh, sorry Carol, longtime neighbor, you left your license at work: No vote for you!

The One Day Voter ID Was Used in Wisconsin

Let's take a look at the one day, February 14, 2012, in Wisconsin when registered, constitutionally qualified voters were forced to present photo voter IDs when walking up to the poll books before casting their vote.

On February 14, 2012, primary day in Wisconsin, there were no statewide elections; the Wisconsin Government Accountability Office did not estimate voter turn-out because of this fact and the related fact of very low voter-turnout that informed observers guessed was about four percent statewide.

Republicans present this four percent February 2012 primary election is having proceeded swimmingly, and therefore high turnout elections (say 60 percent) will by GOP logic be just fine.

Wrong and wrong.

Reposted from February 2012:

Update III: Madison voters turned away at polls for lacking photo ID. "She was fairly recently in a car accident and couldn't make it to the DOT to get a Wisconsin ID," said Melanie Sax, the chief elections inspector at the polling location at Trinity United Methodist Church on Vilas Avenue. The woman, who does not drive, has neither a driver's license nor a state ID.

That woman is Marge Curtin—disenfranchised.

Update II: 69-year old veteran Gil Paar was shocked when poll workers told him his photo I.D. from the V.A. wasn’t on the accepted list. ... “There’s a possibility that a veteran could have only this type of I.D., because he’s had a stroke, let’s say, up at the V.A. hospital. And because of that, he had his driver’s license taken away. So case in point, he would have only this Veterans Administration I.D. through the hospital.

“And they’re telling me I can’t use it, I couldn’t use it. this is not right. you’ve got a guy who serves, does his time in the Air Force, or Army or the Navy, and then he comes home and can’t vote? What the f—- did I go in for?” (Racine Jounral-Times)

Update: U.S. senators on Tuesday asked the Government Accountability Office to study what they called an "alarming number" of new state laws that will make it "significantly harder" for millions of eligible voters to cast ballots this November.

As an observer from the NAACP looked on, the 200-plus voters in one Fitchburg, Wisconsin voting district yesterday presented an electorate irritated with the GOP's new voter ID requirements.

Wisconsin's voter ID law was passed without any Democratic votes, and no dissenting Republican votes.

Rejected, per the new statute (Act 23), yesterday was an Army Reserve ID that did not include an expiration date.

Many comments from voters were made to election workers: Including "What's next, retina scans?" and "Here to pay my poll tax."

One woman who was inexplicably purged from the polls and tried to re-register objected to the voter registration process as too invasive.

Though the voter ID law, Republicans say, is intended to stop rampant voter impersonation at the polls, not one case of voter impersonation in Wisconsin has been prosecuted going back decades.

But Republicans remain optimistic they can stop enough Democratic-leaning citizens from voting to sway a close election, concentrating on suppressing college and tech students, the elderly and black voters in Milwaukee.

A research report by the University of Wisconsin-Milwaukee Employment and Training Institute shows that over 177,000 elderly persons in Wisconsin aged 65 and older do not possess a driver's license or state photo identification.

Oct 13, 2013

Wisconsin Challenge to GOP's Photo Voter ID May Be Landmark


Update: Related piece in Post (Wilson) about Voting Wars in Wisconsin
 ---
Supreme Court Justice John Paul Stevens announced the judgement of the Court in a landmark voting rights case in 2008, delivering an opinion upholding the constitutionality of state-mandated photo voter IDs as a precondition to vote under the United States Constitution.

The Republican Party was happy.

Crawford v. Marion County (Board) Election Board et al legitimized the GOP project to obstruct the vote of non-GOP-voting Americans, a project that went into crash mode as demographic trends signaled electoral trouble for the American White Party. 

Three developments signal an eventual  reversal of Crawford in cases challenging Wisconsin's Photo Voter ID law, slated for trial on November 4—Frank v. Walker, (Case 11cv1128), and Jones et al v. Deininger et al (Case 2:12-cv-00185) (U.S. District Court for the Eastern District of Wisconsin), and likely to reach the U.S. Supreme Court.


Justice John Paul Stevens Succeeded by Justice Elena Kagan

Firstly, Justice John Paul Stevens (1975-2010), the author of the Crawford opinion, has been replaced by Justice Elena Kagan (2010-present), who is by all accounts sympathetic to civil rights against state obstruction.

That's one vote to overrule Crawford.

Justices Ruth Bader Ginsburg and Stephen G. Breyer each dissented from the Court's opinion in Crawford.

That's three votes.

Justice David Souter, who also dissented in Crawford, has been succeeded by Justice Sonia Sotomayor, who is sympathetic to civil rights against state obstruction.

That's four likely votes to overrule, and depending on this Court's custom sufficient to grant cert.

This leaves five remaining votes on the Court that ruled on Crawford:

Chief Justice John G. Roberts, Jr. and Anthony M. Kennedy who joined Stevens' opinion; and Justices Antonin Scalia, Clarence Thomas, and Samuel Anthony Alito who joined Scalia's concurring opinion.

Reads Scalia's opinion:

To evaluate a law respecting the right to vote—whether it governs voter qualifications, candidate selection, or the voting process—we use the approach set out in Burdick v. Takushi, 504 U. S. 428 (1992) . This calls for application of a deferential "important regulatory interests" standard for nonsevere, nondiscriminatory restrictions, reserving strict scrutiny for laws that severely restrict the right to vote. 
Use of Voter ID Laws to Severely Restrict and Discriminate Against Discrete Classes of Voters

Secondly, consider "nonsevere, nondiscriminatory restrictions." 

If one intellectually honest jurist of the Roberts, Scalia, Kennedy, Thomas, and Alito majority takes a look at the record accumulated in Frank v. Walker and Jones et al v. Deininger when these cases are petitioned to be heard before the Supreme Court, it will be clear, it will be striking, that severe, discriminatory restrictions are inherent and intended in GOP-written state photo voter ID laws.

Five years since Crawford have changed the minds of many jurists.

As Souter wrote, joined by Ginsburg:

The statute is unconstitutional under the balancing standard of Burdick v. Takushi, 504 U. S. 428 (1992) : a State may not burden the right to vote merely by invoking abstract interests, be they legitimate, see ante, at 7–13, or even compelling, but must make a particular, factual showing that threats to its interests outweigh the particular impediments it has imposed. The State has made no such justification here, and as to some aspects of its law, it has hardly even tried
Five years have yielded an abundant factual record showing voting impediments and barriers, and virtually no showing of voter impersonation fraud out of 100s of millions of votes cast. And that's without Wisconsin's trial not yet begun.

Judge Richard A. Posner Recants His Crawford Opinion

Finally, the author of Crawford in the U.S. Court of Appeals for the Seventh Circuit which will hear the likely appeal of Frank and Jones, Judge Richard A. Posner (1981-present), has publicly recanted his Crawford opinion he authored, saying, "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 [Crawford] would have been decided differently"

Can states eliminate the right of suffrage for discrete, otherwise constitutionally qualified voters?

The intent and effect of the flurry of GOP voter ID laws, and Wisconsin's law in particular, suggest their anti-voting project is unconstitutional as it erects discriminatory barriers that violate Section Two of the Voting Rights Act and the 14th and 15th Amendments to the U.S. Constitution.

As John Schwartz writes in the New York Times: "Richard L. Hasen, a law professor at the University of California, Irvine, and an expert on election law, said an admission of error by a judge is unusual, and 'gives to Democrats an ‘I-told-you-so’' argument on voter identification issues.
More significant, he said, it reflects what he called a recent shift. Previously, cases were decided largely along party lines, but then 'you started seeing both Democratic- and Republican-leaning judges' reining in voter identification requirements"


If say in 2014-15, the U.S. Supreme Court agrees to hear Frank and Jones, Scott Walker and Wisconsin Republicans will have made history just not in the way they intended.

Aug 26, 2013

Altering of online Wisconsin Constitution; Is LRB Going GOP?

Updated - New LRB page on Suffrage.

Updated - I was surprised to find in the online Wisconsin Constitution's webpage on Suffrage (Section III, aka voting) changes have been made to support the GOP's Wisconsin Attorney General-GOP's position on photo voter ID.

Weird to find annotations in the Constitution to a federal voting rights case directly refuting the clear language on the Wisconsin Constitution.

So, this morning I spoke with Bruce Hoesly, Revising Attorney/Code Editor at the Wisconsin Legislative Reference Bureau (LRB).

Hoesly says he updates the website for the Wisconsin Constitution.

Hoesly has worked at the LRB for 22 years, he said.

Hoesly appeared not very well-versed on the Wisconsin Constitution this morning on a phone call.

Background

The following misleading sentence has been added to the online Wisconsin Constitution's Voting Section, III: "An Indiana statute requiring citizens voting in person on election day, or casting a ballot in person at the office of the circuit court clerk prior to election day, to present photo identification issued by the government did not violate constitutional standards. Crawford v. Marion County Election Board, 553 U.S. 181, 128 S. Ct. 1610, 170 L. Ed. 2d 574 (2008)." (emphasis mine) [The webpage reads "Current through May 21, 2013" at the bottom of the page.]

This appears a naked display on what used to be a non-political webpage on the Wisconsin Constitution maintained under the auspices of the Wisconsin Reference Bureau (LRB). 

Hoesly

So I asked the LRB's attorney Hoesly why the page has been altered to reflect AG Van Hollen's ludicrous spin that Crawford v. Marion County Election Board (a federal case relying on a reading of the U.S. Constitution) should be added under the online Wisconsin Constitution's text, with its broad guarantee to vote vis a vis the United States Constitution.

Van Hollen's office had issued a press release dated July 19, 2012 reading in part: "Voter identification helps ensure election integrity.  It is a measure that protects the right to vote. And similar election integrity reforms have been upheld as constitutional by the United States Supreme Court."

After Hoesly denied anything partisan is afoot, I asked Hoesly should he not adopt some "rigor" into adding editorial comment under the Wisconsin Constitution's text on voting rights, in light of his inserted language about Crawford.

Hoesly said, "no," adding, "I don't believe it (editing the text of online Wisconsin Constitution) deserves more rigor."

I asked Hoesly, the relevancy of Artcile III of the Wisconsin Constitution to the federal case, Crawford.

Hoesly replied, "I'm not an expert on Article III (of the Wisconsin Constitution)," adding that he thought of the Crawford language "that it might be useful to readers."

I pointed out to Hoesly that Crawford relies on the U.S. Constitution while the ruling currently enjoining Wisconsin photo voter ID relies on the Wisconsin Constitution guaranteeing the right to vote.

Hoesly's response is babble.

So, why the Republican spin in Hoesly's language on a page that is supposed to be the online text of Wisconsin Constitution? 

Corruption is my guess. 

The GOP-added sentence to Suffrage is misleading for several reasons. Here again is a summary:

1. Crawford v. Marion County Election Board (2008) is a federal case based upon a facial challenge (a law asserted to be illegal or unconstitutional on its face) to an Indiana state law obstructing voting.  
Crawford relied upon the weak warrant to vote under the United States Constitution, not the Wisconsin Constitution. And the Crawford case included no social scientific evidence as was presented in
Milwaukee Branch of the NAACP v. Walker (Case 11CV5492) (2012).

2. The Wisconsin Constitution—the topic of the Wisconsin Constitution's webpage—includes a strong, affirmative right to vote under ARTICLE III, Suffrage vis a vis the United States Constitution. (Hence, U.S. Reps. Mark Pocan (D-WI) and Keith Ellison's (D-MN) Right to Vote Amendment, explicitly guaranteeing Americans' right to vote in the U.S. Constitution." Hey, Rep. Sensenbrenner (R-White People), still waiting for your support of the Right to Vote Amendment in light of your unshakable commitment of voting rights.

3. The Wisconsin Constitution explicitly specifies the type of laws that may be enacted to regulate elections, enumerating the specific conditions under which the qualifications of voters (electors) may be changed by the enactment of laws under Section 2, and only Section 2. Anything outside this scope and the legislature has to change the Wisconsin Constitution.

This GOP pretension that the federal case, Crawford, controls Wisconsin state voting rights case is a disingenuous political talking point, hawked by Wisconsin's GOP Attorney General, J.B. Van Hollen and other GOP politicos.

As Judge David T. Flanagan writes in striking down the GOP Photo Voter ID bill in July 2012 in Milwaukee Branch of the NAACP v. Walker (Case 11CV5492):

The Crawford decision has very little application to the dispute now before this Court, however, for three primary reasons. First, this case is founded up the Wiscosnin Constitution which expressly guarantees the right to vote, while Crawford was based upon the U.S. Constitution which offers no such guarantee. Second, the Indiana law is less rigid than Act 23, and noted by the U.S. Supreme Court, offered alternative voting opportunities to voters who lacked the Photo ID. Finally, Crawford came to the Court based upon a flawed factual record, lacking the substantial evidence that has been offered by the plaintiffs in this action. This case is based on a claim that Act 23 violates the Wisconsin Constitution, not the U.S. Constitution. The people of Wisconsin may choose to assure to themselves rights under their own constitution that differ or exceed those guaranteed under the U.S. Constitution, State v. Doe, 78 Wis 2d 161, 172 (1977). The question of what is permitted and what is protected by the Wisconsin Constitution is the issue before this court and that issue was not before the U.S. Supreme Court in the Crawford case.
This is not the first time Van Hollen and the Republican Party have lied about federal law and federal case law in order to obstruct voting rights on the state level.

See Van Hollen's and the GOP 2008 efforts at voter suppression in which Van Hollen's similarly ridiculous effort was tossed out of court.

In the 2008 case, (J B Van Hollen vs. Government Accountability Board (GAB) et al) Van Hollen tried to create a new Wisconsin constitutional qualification to vote by fiat: A perfect match of the spelling of voters' names in state bureaucracies, after assuring fellow Republicans he would commence this frivolous legal action at the 2008 Republican National Convention held in Minneapolis, as first reported by WisPolitics in a scoop that includes audio.

Several former judges serving on the GAB Board would have failed Van Hollen's new constitutional standard proposed in 2008, as this GOP effort drew wide ridicule.

"Nothing in state or federal law requires that there be a data match as a prerequisite for a citizen's right to vote," Judge Maryann Sumi said in dismissing Van Hollen's lawsuit that tried to use the Help America Vote Act (HAVA) as a voter suppression tool.

Our corrupt attorney general, up for reelection on 2014, will not give up his Party's project of denying the voting rights of Wisconsin citizens; and neither will the Republican Party now holding sway in the gerrymandered state legislature, and it would appear in the
Wisconsin Legislative Reference Bureau (LRB)

Non-GOP-fixed Section III on the Wisconsin Constitution on Suffrage - Voting