Gov Walker's Brazen Defiance of Federal Court Risks Wrath of Judiciary in Wisconsin Voting Rights Case

U.S. Dist Judge James Peterson ruled for voting rights,
and against Republican-enacted voting restrictions
in One Wisconsin Institute v. Thomsen. Peterson's
judgment of Aug 1, 2016, and his judicial authority are
now focal points of open defiance by Wisconsin
legislative Republicans and Gov. Scott Walker (R).

Madison, Wisconsin — Defeated Gov Scott Walker (R) signed sweeping lame-duck legislation aimed at limiting the powers of non-Republican elected officeholders and Wisconsin voters (Wisconsin State Journal, the Capital Times, Associated Press), Wisconsin State Senate, 2018 Dec. Extraordinary Session).

Wisconsin Republicans' hubris, echoing Walker's 2018 dismissal of his affirmative duty to call special elections (Robert Dallas Newton Jr. v. Scott Walker), reveals a pathology that now targets the legitimacy of the federal judiciary in Senate Bill 884, signed by Walker as Wisconsin Act 369.

Beyond its routine foolish reading of the rule of law and the law of the case (One Wisconsin Institute, et al v. Thomsen consolidated with Frank v. Walker), in signing Senate Bill 884, Walker has engaged in legitimatizing legislative effrontery that challenges the authority of United States District Court of the Western District of Wisconsin and the United States Court of Appeals for the Seventh Circuit.

The Wisconsin Republican position: Yes, yes, U.S. Dist Judge James Peterson, you and your appellate-circuit friends get very excited in offering your two cents on election law and One Wisconsin Institute, but we Wisconsin Republicans are very busy here, so run along, now.

As the One Wisconsin Institute (and the National Redistricting Foundation) engage in major federal and state litigation against Wisconsin Act 369 that restricts all Wisconsin early-voting to two weeks before Election Day, Republicans have been silent on the fact that the federal judiciary has already ruled this scheme to be unconstitutional, racially discriminatory and pretextual (misrepresentative in legislative purpose)—high bars to achieve for voting rights advocates.

In One Wisconsin, U.S. District James Peterson ruled much of the Republican transformation of Wisconsin election law and many Republican "arguments for its restrictive voting rules [are] pretexual [misrepresentative], and really aimed at giving Republicans advantage in elections," as noted by Rick Hasen, an election law expert living in California (see Becker, The Capital Times, Mal Contends, One Wisconsin Institute v. Thomsen, Mal Contends, Moritzlaw, Rick Hasen, One Wisconsin Institute v. Thomsen).

Argue the plaintiffs, One Wisconsin Institute and Citizen Action of Wisconsin Education Fund, as noted at Election Law at Moritz:

Count I: Violations of Section 2 of the Voting Rights Act
Count II: Undue Burdens on the Right to Vote in Violation of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment
Count III: Disparate Treatment of Voters without a Rational Basis in Violation of the Equal Protection Clause of the Fourteenth Amendment
Count V: Abridgment or Denial of the Right to Vote on the Basis of Race in Violation of the Equal Protection Clause of the Fourteenth Amendment and Fifteenth Amendment

The One Wisconsin Institute and the National Redistricting Foundation (Eric Holder's group), will soon be making the case for the Constitutional rights of Wisconsin voters in federal litigation to uphold Judge Peterson's prior ruling. Wisconsin Republicans cannot just pretend this case hasn't already been adjudicated.

Wisconsin Republicans

To understand Wisconsin Republicans' psychology, one needs to consider the Party has become so self-entitled and brazenly dishonest, Republican believe, for example, a mere federal judge who issued a pro-voting rights decision in U.S. District Court in 2016 is no impediment to stopping voters who dislodged the Republican anti-voting rights governor and attorney general.

In Republican land the more audacious the lie, the dismissal of established law, and the will of the people, the more Republican self-congratulations.

Republicans can be understood as an underground corporate, Evangelical and white-power movement that seized governmental power with a secret agenda on which it did not campaign, and now schemes to impose its authoritarianism in every corner of government insulated from democratic will and the rule of law.

George Packer calls Republicans a "insurgency" steeped in "institutional depravity" (The Atlantic).

Abe Lincoln called such insurgencies a "conspiracy to seize power" (Nichols, The Nation).

By the way, even as the Republican Party has become an outlaw player in American government, the press still refers to the Party as "conservative," and to voting rights advocates, for example, as "liberal." Absurd. Political writers still cannot drop 'conservative' as a continuing term of description.

In any event, the Republican Party's justification of its voting crackdown, uniformity and fairness, has already been found to not have any rational basis.

We Republicans disagree . . . , is not likely a compelling position to assume in challenging the federal judiciary ruling still being adjudicated in appellate court, during a period when the federal judiciary has grown skittish about the primacy of the rule of law prevailing against executive branch and Party claims of monarchical power.

Scott Walker disagrees of course:

pic.twitter.com/sXcNICpX20

— Scott Walker (@ScottWalker) December 11, 2018

Scott Walker leaves as he governed: with no regard for the wishes of the people of his great state. Totally obedient to the special interests and his party. To lead you have to be bigger than that. https://t.co/3seTUyHsV5

— Eric Holder (@EricHolder) December 14, 2018

When he signed the #WIGOPpowergrab bills, Scott Walker sealed his fate.

The outgoing governor will be remembered only for the harm he has done. And that is the most tragic legacy imaginable for a failed politician. https://t.co/I70xZmLoey

— John Nichols (@NicholsUprising) December 15, 2018

Wisconsin DoJ: Voting Rights Legal Battle Will Sow Confusion as DoJ Intends to Wage War v. Voting Rights

Wisconsin Republicans are hostile to liberties of citizens
to vote. (One Wisconsin Now Institute v. Thomsen)

Alice in WisconsinLand

Wisconsin Republicans want voter obstruction now because they say they will fight for obstruction again and its efforts may confuse voters

Wisconsin Republicans do not want non-Republicans showing up to vote.

The Wisconsin Dept. of Justice has filed an appeal of a second Wisconsin federal pro-voting rights decision, (Wisconsin Dept. of Justice), (One Wisconsin Institute v. Thomsen), following the defeat of Republican voter obstruction efforts in two federal cases.

Republican DoJ attorneys argue the Republican transformation of Wisconsin election law against voters will confuse voters unless court-ordered voting guarantees are stopped, (stayed), because the DoJ will file more appeals in federal appellate court should its efforts be rebuffed in its first appeal, (Wisconsin Dept. of Justice), (Motion to Expedite).

Welcome to Republican world, where Republicans claim to be concerned their voter obstruction laws will be confusing to voters if Republicans continue to oppose voting rights, which Republicans promise to do.

Not fighting voting rights is an option that has not occurred to Republicans apparently.

In One Wisconsin Institute v. Thomsen, citizens' voting rights won a major victory last week, (Mal Contends), (U.S. District Court of the Western District of Wisconsin (Case 15-cv-324) (Moritzlaw).

The case is being appealed to the United States Court of Appeals for the Seventh Circuit.

Numerous Republican-enacted actions against voting rights are permanently enjoined, (halted) in One Wisconsin Institute, and now Republican attorneys point to the Wisconsin Elections Board (GAB) 2015-2016 calendar showing the September 22 deadline, (p. 15), for municipal clerks to mail absentee ballots to voters.

This case became titled One Wisconsin Institute v. Thomsen, as of August 1, after Republican-enacted changes to Wisconsin state election authority took effect.

Wisconsin DoJ attorneys write the reasoning in the Frank case opinion is incorporated in the One Wisconsin opinion, (Docketing Statement).

This case is related to a case currently pending before this Court, Ruthelle Frank, et al., v. Scott Walker, et al., Nos. 16-3003 and 16-3052. Both cases involve challenges to Wisconsin’s voter ID law—specifically, to the petition process for obtaining free IDs from the Wisconsin Department of Transportation, Division of Motor Vehicles. The district court in this case, [One Wisconsin], incorporated the factual findings of the district court in Frank, which in turn based its decision on evidence presented in this case. (See Dkt. 234:8 (“The court also adopts the facts found by Judge Adelman [in Frank] concerning the history and operation of the [ID petition process], which he based substantially on the evidence presented in this case. Frank v. Walker, No. 11-cv-1128, 2016 WL 3948068 (E.D. Wis. July 19, 2016).”).

One doctrine that will likely be used by the federal appellate court in deciding this One Wisconsin case is outlined by Judge Frank Easterbrook in his April 12, 2106 opinion in Frank v. Walker, (Court of Appeals for the Seventh Circuit), the other Wisconsin federal voting rights case.

Easterbrook writes in part in his opinion remanding the Frank case to U.S. District Court to implement his opinion in the case: "The right to vote is personal and is not defeated by the fact that 99% of other people can  secure the necessary credentials easily," (p. 7, p. 4 in PDF). This spells a likely legal defeat for Republicans.

As some point, it is possible political pressure will become sufficiently strong for voting rights that Republicans will stop their war against voters.

It's won't be reasonableness that will stop them.

Bizarre Republican Polemics Defending Voter Obstruction

Even in the courtroom Republican defenders of voter obstruction substitute polemics for constitutional reasoning as Republicans refuse to close out project attacking voting rights

Republican defenders of voter obstruction often use virtually identical language to defend state laws that "disenfranchise voters likely to vote for the political party that does not control the state government," to borrow a phrase from Judge Richard Posner.

Posner's extraordinary 2104 On Suggestion of Rehearing En Banc is a veritable judicial white paper explaining Republican state efforts to suppress voters, (Posner, Court of Appeals for the Seventh Circuit), (Friedman, The Brad Blog), (Mal Contends).

Ohio Secretary of State Jon Husted, the Republican Party's point man on Republican voter obstruction in his state, announced yesterday his office filed an appeal in the voting rights case, Ohio Organizing Collaborative v. Jon Hustad (Case No. 2:15-cv-1802), (Ohio Secretary of State).

Said Hustad, "To ensure we were fulfilling our goal of making it easy to vote and hard to cheat, we expanded weekend and weekday hours for in-person absentee voting as part of a compromise for the reduction in hours that came with the elimination of Golden Week," (Hustad, Ohio Secretary of State) (emphasis added). Hustad terms the Ohio Organizing Collaborative case the Ohio Democratic Party et al v. Husted, using Republican Party polemics contradicting the federal judge hearing the case on the title.

Easy to vote and hard to cheat.

This phrase may sound familiar to Wisconsin politicos. That's because the Republican Gov. Scott Walker often uses the phrase (or a derivation) when trying to defend voter obstruction in Wisconsin.

"In our state we have a photo ID requirement that would make it easy to vote and hard to cheat," Walker told reporters last year at Iowa Sen. Joni Ernst's Roast and Ride event, (CBS News, June 6, 2015) (emphasis added).

From Ohio to Wisconsin, Minnesota, Iowa, and across the country, Republican voter obstruction operatives such as Hans von Spakovsky, and John Fund employ the phrase as a justification for voter obstruction laws such as Wisconsin's. Catchy phrase but vacuous as an argument.

Bizarre

In Wisconsin, the Republican case for voter obstruction as made at the bench trial of One Wisconsin Institute v. Nichol (U.S. District Court of the Western District of Wisconsin (Case 15-cv-324)) has veered into the vacuous and the bizarre.

Novack Doctrine

One witness for the Republicans, Waukesha County Clerk Kathleen Novack, testified at One Wisconsin, saying, "too much access to the voters as far as opportunities" to vote exist in Madison and Milwaukee, (Jake's Economic TA Funhouse), (Opoien, The Capital Times). This would be the Novack Doctrine, a guiding principle of Republican jurisprudence in voting rights law.

Schimel Doctrine

Republicans at the Wisconsin Dept. of Justice also kept up their line of reasoning that photo voter IDs are popular with citizens who possess the Ids, hence Wisconsin's restrictive law conditioning the right to vote on presenting Republican-approved photo voter IDs is both popular and Constitutional, (Mal Contends). This is the Schimel Doctrine, so named after Wisconsin's current Republican attorney general.

The Schimel Doctrine that voting restrictions' constitutionality is conditioned on polling numbers was ridiculed by a Court of Appeals for the Seventh Circuit's three-judge panel in 2014.

"What conceivable relevance is a polling number to this litigation?," said Judge Frank Easterbrook, a voting rights opponent and author of the 2014 opinion upholding Wisconsin's photo voter ID law in Frank v. Walker.

Testimony has concluded in One Wisconsin. Closing arguments are scheduled for June 30.

One Wisconsin Institute

Below is a press release from the One Wisconsin Institute on the conclusion of testimony.

Testimony Concludes in Federal Voting Rights Trial Challenge to Republican-Led Attacks on Electoral Participation in Wisconsin

Intentions of Five Year Campaign to Undermine Voting Rights and Impacts of Voter Suppression Schemes on Legal Voters Exposed

MADISON, Wis. — Testimony concluded today in the federal voting rights trial, One Wisconsin Institute et. al. v. Gerald Nichol et. al., which challenges the state voter ID requirement, changes to voter registration requirements, limits on early voting and other restrictive changes to Wisconsin’s election laws adopted by Gov. Scott Walker and the Republican-controlled legislature.

Plaintiffs argued that the changes were meant to and have the effect of making it more difficult to vote in Wisconsin, especially for minorities, young people, and voters who tend to support Democratic candidates.

The following are the statements of One Wisconsin Institute Executive Director Scot Ross:

“The testimony and evidence provided to the court exposed the intentions behind the myriad of election law changes and revealed the impacts on voters of the five year assault on their rights perpetrated by Gov. Walker and the Republican-controlled legislature.

“Gov. Walker and Republican legislators set out to make it harder for minorities, young people and voters who tend to support Democratic candidates to participate in our elections. As a result, legal voters have been denied the franchise, and will continue to be denied their right to vote unless their suppression schemes are struck down.

“The real voting fraud in Wisconsin has been exposed, and it is these politicians manipulating the rules on voting to give themselves an unfair partisan advantage.

“Their actions have subverted our democracy and violate federal law.”
# # #
One Wisconsin Institute is a non-partisan, progressive research and education organization dedicated to a Wisconsin with equal economic opportunity for all.

Federal Judge Stops Republican Voter Obstruction Laws That 'Transformed Wisconsin’s Elections'

Sweeping voting rights win in Wisconsin in
One Wisconsin Institute v. Thomsen - Jenny Dye and Scott
Ross of One Wisconsin, a named co-plaintiff,
celebrate on Friday - Image: One Wisconsin

Judge rules Wisconsin Republicans sought partisan advantage by denying rights of Wisconsin voters, going so far as to discriminate on the basis of race in Milwaukee

Wisconsin Republicans' voter obstruction laws took a massive blast from United States District Judge James D. Peterson in One Wisconsin Institute v. Thomsen, (U.S. District Court of the Western District of Wisconsin (Case 15-cv-324) (Moritzlaw).

Peterson issued a sweeping order finding Republican-enacted, (and only Republican), election laws unconstitutional in a major win for voting rights in Wisconsin.

"Wisconsin’s voter ID law is part of 2011 Wis. Act 23, enacted the year after Wisconsin Republicans won the governorship and majorities in both houses of the legislature. Act 23 was the first of eight laws enacted over the next four years that transformed Wisconsin’s election system," writes Peterson. (p. 2).

Writes a noted election scholar, Rick Hasan, in his early and the first-published analysis of Peterson's 119-page opinion at Hasen's Election Law site:

Among other things, the court has ordered that expired but otherwise valid student id cards will be valid for voting. This is yet another win for voting rights activists in the past few weeks. The trial court enjoined the following WI laws:

• most of the state-imposed limitations on the time and location for in-person absentee voting (although the state may set a uniform rule disallowing in-person absentee voting on the Monday before elections);
• the requirement that ''dorm lists' to be used as proof of residence include citizenship information;
• the 28-day durational residency requirement;
• the prohibition on distributing absentee ballots by fax or email; and
• the bar on using expired but otherwise qualifying student IDs.

This is a pretty sweeping opinion, which rejects many of the state’s arguments for its restrictive voting rules as pretexual, (misrepresentative), and really aimed at giving Republicans advantage in elections. The judge was particularly skeptical of measures which made it harder to vote in Milwaukee, with its large population of minority voters, and to a lesser extent, Madison, a liberal stronghold in the state.

The One Wisconsin decision was preceded by hours by another major voting rights win against Republicans in North Carolina, (Mother Jones). Another federal voting rights case in Wisconsin, Frank v. Walker, preceded One Wisconsin by days, (Mal Contends).

Both cases and One Wisconsin are major wins for voting rights and defeats for Republicans voter obstruction.

Concludes Peterson in One Wisconsin: "The evidence in this case casts doubt on the notion that voter ID laws foster integrity and confidence. The Wisconsin experience demonstrates that a preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement which undermine rather than enhance confidence in elections, particularly in minority communities. To put it bluntly, Wisconsin’s strict version of  voter  ID  law  is  a  cure  worse  than  the  disease," (p. 4).

Republican attacks on Milwaukee early voting are discriminatory

The Court held the Republican-enacted law limiting Milwaukee's in-person absentee, (early voting), voting "intentionally discriminates on the basis of race," (p. 42). Writes Peterson:

Based on the evidence that plaintiffs have presented, the court finds that Wisconsin’s restrictions on the hours for in-person absentee voting have had a disparate effect on African Americans and Latinos. The court also finds that the legislature’s justification for these restrictions was meager, and that the intent was to secure partisan advantage. Finally, the court finds that the legislature specifically targeted large municipalities — Milwaukee in particular —intending to curtail minority voting. ...

[Republican] Defendants  contend that [Senators] Grothman and Fitzgerald were simply trying to achieve a measure of statewide uniformity because smaller  towns were unable to afford the extended hours that Milwaukee was offering. That explanation is hard to credit. ...

The acknowledged impetus for this law was the sight of long lines of Milwaukee citizens voting after hours. Yet instead of finding a way to provide  more  access to voters in small towns, the legislature responded by reining in voters in Milwaukee, the state’s most populous city, where two-thirds of its African American citizens live. ...

Combined, these findings lead the court to further find that the legislature passed the provisions restricting the hours for in-person absentee voting motivated in part by the intent to discriminate against voters on the basis of race. The legislature’s ultimate objective was political: Republicans sought to maintain control of the state government. But the methods that the legislature chose to achieve that result involved suppressing the votes of Milwaukee’s residents, who are disproportionately African American and Latino. The legislature did not act out of pure racial animus; rather, suppressing the votes of reliably Democratic minority voters in Milwaukee was a means to achieve its political objective. But that, too, constitutes race discrimination. Ketchum v. Byrne, 740 F.2d 1398, 1408 (7th Cir. 1984) (“We think there is little point for present purposes in distinguishing discrimination based on an ultimate objective of keeping certain incumbent whites in office from discrimination borne of pure racial animus.”), (pp. 42-45)

From One Wisconsin Institute:

MADISON, Wis. — Today, federal Judge James Peterson issued a ruling in the federal voting rights lawsuit One Wisconsin Institute Inc., et al v. Gerald Nichol, et al. One Wisconsin Institute and their co-plaintiffs have argued that a series of election law changes made by Gov. Scott Walker and the Republican-led state legislature were meant to and have the effect of making it more difficult to vote in Wisconsin, especially for minorities, young people, and voters who tend to support Democratic candidates.

Republicans defending the challenged provisions have claimed they are necessary to protect against voter fraud, despite the fact that a person is more likely to be struck by lightning than to impersonate a voter. But behind closed doors, Wisconsin legislators discussed how the law would help Republicans by disenfranchising voters in Democratic areas.

Today’s ruling strikes down a number of the challenged provisions restricting voting rights of Wisconsinites, including restrictions on early voting hours and elimination of weekend voting; restrictions on use of student IDs for voting, and the 28-day residency requirement, among other provisions.

In regard to restrictions on hours for in-person absentee voting, the court specifically found that the law “intentionally discriminates on the basis of race…The legislature’s immediate goal was to achieve a partisan objective, but the means of achieving that objective was to suppress the reliably Democratic vote of Milwaukee’s African Americans.”

Scot Ross, executive director for One Wisconsin Institute, offered the following statements in response to today’s ruling:

“We argued Gov. Walker made it harder for Democrats to vote and easier for Republicans to cheat, and the judge agreed.

“The people behind the laws Judge Peterson has struck down sought to put their own partisan interests ahead of the rights of every American — regardless of race, party, or age – to cast their ballot as they so choose.

“Make no mistake about it, this is the strategy that has gone on for decades with Republicans. They want to do everything to create longer lines in urban areas and on college campuses, so that instead of accessing the franchise, voters simply go home because they can’t wait for hours and hours. This is their strategy, and there is not one piece of this attack on voters that can be seen as other than serving that end.”

“As the eyes of the nation are focused on the accomplishments and legacy of our nation’s first African American President and First Lady, Gov. Walker and his legislative allies refuse to accept the expanding diversity of our nation. Rather than make their public policy more inclusive, Republicans instead chose to rig the laws to rig the ballot box.

“Today’s decision is a huge win not only for the plaintiffs but also for democracy itself. We could not be more proud of this victory.”

Wisconsin Republicans Want to Close Early Voting Sites for Weeks in Desperate Move to Clamp Down on Voters in Lameduck Session

Federal litigation would likely doom anti-voting measure

Madison, Wisconsin — Wisconsin Republicans are going to consider several anti-voting measures in an extraordinary session of the lameduck legislature, the Wisconsin State Journal reports today.

The anti-voting measures include a proposed clampdown on voting that would effectively shutter early voting sites for weeks.

A similar early voting clampdown was found unconstitutional and "pretextual" (misrepresentative) in the Summer of 2016 in a sweeping opinion in U.S. District Court, One Wisconsin Institute v. Thomsen.

That federal voting rights court case, One Wisconsin Institute v. Thomsen, is now before the full United States Court of Appeals for the Seventh Circuit, (Marley, Milwaukee Journal-Sentinel).

Wisconsin Republicans risk offending some Republican-leaning appellate judges in the Seventh Circuit because Republican justification of consistency is identical to its past justifications of "uniformity," ruled to not serve a rational state purpose by U.S. Dist Judge James Peterson in One Wisconsin.

Also complicating new Republican-enacted restrictions against voting is the election of Democratic Party Attorney General Josh Kaul. 

Republicans are unlikely to prevail in statewide races here if free and fair elections continue in the voter-friendly manner of post-One Wisconsin.

In One Wisconsin a U.S. District judge ruled much of the Republican transformation of Wisconsin election law and many Republican "arguments for its restrictive voting rules [are] pretexual, [misrepresentative], and really aimed at giving Republicans advantage in elections," as noted by Rick Hasen, an election law expert living in California, (see Becker, The Capital Times, Mal Contends, One Wisconsin Institute v. Thomsen, Mal Contends, Moritzlaw, Rick Hasen, One Wisconsin Institute v. Thomsen).

The Seventh Circuit includes four new judges who were nominated by Donald Trump.

The four judges are expected to be hostile to voting rights, and were nominated because of their rightwing jurisprudence and fidelity to the Republican Party.

The Trump-nominated judges are: Amy C. Barrett, Michael B. Brennan, Michael Y. Scudder, Jr., and Amy J. St. Eve.

Green Bay City Clerk Axed Early Voting Site to Help Republicans

One Wisconsin reveals Green Bay City Clerk's voter obstruction

Open Records Request by One Wisconsin Institute Reveals More Republican Voter Obstruction

From Green Bay comes more evidence of a tactical voter suppression scheme by Wisconsin Republicans engineered through municipal clerks and assorted bureaucrats.

Ari Berman reports in The Nation:

City Clerk Kris Teske, an appointee of Republican Mayor Jim Schmitt, a close ally of Governor Scott Walker, killed the idea of an early voting site at UW-Green Bay offering the excuse that the "city didn’t have the money, time, or security to open an early-voting location on campus or anywhere else."

Notes Berman:

... privately Teske gave a different reason for opposing an early-voting site at UW–Green Bay, writing that student voting would benefit the Democratic Party. 'UWGB is a polling location for students and residents on Election Day but I feel by asking for this to be the site for early voting is encouraging the students to vote more than benefiting the city as a whole,' she wrote on August 26 in an e-mail to David Buerger, counsel at the Wisconsin Ethics Commission. 'I have heard it said that students lean more toward the democrats…. I have spoken with our Chief of Staff and others at City Hall and they agree that budget wise this isn’t going to happen. Do I have an argument about it being more of a benefit to the democrats?'

Yes.

The source revealing the Republican Teske's duplicity are e-mails provided to The Nation following an open-records request by the One Wisconsin Institute, a plaintiff in One Wisconsin Institute v. Thomsen (U.S. District Court of the Western District of Wisconsin (Case 15-cv-324), a major voting rights case in federal court in Wisconsin.

In One Wisconsin, the Republican-enacted law to limit early voting was found to be "pretextual" by U.S. District Judge James Peterson. This means Republicans, and only Republicans, lied, (Mal Contends), (One Wisconisn), (One Wisconsin Institute v. Thomsen).

In federal court, the Republican gig is up. The cooperate media has not quite caught on.

Writes Mark Joseph Stern in Slate in August after an appellate panel let stand Judge Peterson's ruling against the GOP's anti-early voting legislation: "As election law expert Rick Hasen notes, the same panel’s willingness to let Peterson’s ruling stand is rather revealing. Even for these conservative-leaning judges, it seems, Wisconsin’s race-based early voting cuts go beyond the pale. And thanks to their willingness to peer beyond the Legislature’s laughably pretextual justifications for disenfranchisement, thousands more Wisconsin voters will be able to cast their ballots this November."

Wisconsin Republicans continue to fight efforts to allow voters to vote.

Madison, Wisconsin Turnout Soars to 29.4 percent in Spring Primary

Madison, Wisconsin—This weekend the Madison City Clerk's office sent an administrative email to election workers reporting City turnout was 29.4 percent in the Spring Primary election held Feb. 20.

Typically, Wisconsin Spring primaries, which are held in February, see turnouts in the single digits.

Last weeks' election reveals the pre-2017 days of single-digit turnouts in Madison appear to be over.

The new normal is record-breaking turnout in February weather, continuing a trend from 2017 begun after the 2016 Wisconsin voting rights case, One Wisconsin Institute v. Thomsen, in which voters prevailed over Wisconsin Republicans' voter obstruction measures.

In One Wisconsin a U.S. District judge ruled much of the Republican transformation of Wisconsin election law and many Republican "arguments for its restrictive voting rules [are] pretexual, [misrepresentative], and really aimed at giving Republicans advantage in elections," as noted by Rick Hasen, an election law expert living in California, (see Becker, The Capital Times, Mal Contends, One Wisconsin Institute v. Thomsen, Mal Contends, Moritzlaw, Rick Hasen, One Wisconsin Institute v. Thomsen).

Since the sweeping One Wisconsin ruling that, for example, struck down a Republican-enacted law forbidding the placement of multiple early-voting polling places in Madison and Milwaukee, Madison has worked for "voter outreach efforts, ... [with the] goal is that every eligible voter will be able to cast a ballot and have that ballot counted," as noted in a typical Madison Voter Education Ambassador Training session to be held on Feb. 27.

The judge in One Wisconsin ruled "most of the state-imposed limitations on the time and location for in-person absentee voting," failed to further a legitimate state interest, a low bar, (p.5).

Madison now retains some 14 early voting, (in-person, absentee), locations in city limits.

Madison's facilitating the right of voters to vote has provoked hostile Wisconsin Republicans to retaliate against Madison through several non-election initiatives that eliminate local control. The initiatives are being considered in the Wisconsin legislature.

The hostility also comes from some white poll workers.

At the Meadowood polling site on Feb. 20, a white poll worker, (a racist named Terry), had voiced specific disapproval about the inclusion of black poll workers in April 2017. The racist remains working at the polls.

Terry harassed and hazed other poll workers last Tuesday with the apparent intent of creating a hostile polling place at the Meadowood polling place.

White entitlement and racial animus still define Wisconsin politics and the polling place.

Against this reality, training sessions and work by numerous Madison election officials to implement measures recognizing the powerful, affirmative right to vote in the Wisconsin Constitution, Suffrage - Article III, (Ballotpedia), and protected by the First and 14th Amendments of the United States Constitution, continue.

US Dist. Judge: Wisconsin Voter Obstruction Laws Remain Halted, Injunction Against Voter ID Is Delayed

Update: Ernest A. Canning has the story and analysis of an emergency appeal before the full court of U.S. Court of Appeals for the Seventh Circuit. Writes Canning, "The plaintiffs in One Wisconsin Institute v. Thomsen, one of several long-running court challenges to Wisconsin Republicans' strict Photo ID voting restriction, have filed an emergency petition with the full en banc U.S. 7th Circuit Court of Appeals, asking that it overturn its previous photo ID decision in Frank v. Walker.
The still pending Frank case as well as the One Wisconsin challenge have, to say the least, undergone a circuitous recent history in a number of federal courts that oversee Badger State election law," (Brad Blog).
---
In a victory for voting rights, numerous Republican-enacted voter obstruction laws remain halted from enforcement, and one aspect of a July 29 order against the Republican-enacted voter ID law will take effect after the November 8 presidential election, ordered U.S. District Judge James Peterson yesterday in One Wisconsin Institute v. Thomsen.

The status of two Wisconsin federal voting rights cases, One Wisconsin Institute v. Thomsen and Frank v. Walker, is fluid and the September 22 date at which the Wisconsin Elections Commission will begin mailing absentee ballots is approaching.

On or after Sept. 22, it is unlikely the Court of Appeals for the Seventh Circuit will change the status quo of the amassed injunctions, stays and motions to vacate as voting rights advocates continue the fight against Republican laws to obstruct Wisconsin voters.

It is a judicial doctrine, the Purcell Principle, that federal courts will not change election laws after the voting process has begun.

"District Court in Other WI Case Mostly Denies WI Request for Stay of Ruling," reads an Election Law piece by Rick Hasen, referring to two federal voting rights Wisconsin cases now likely facing scrutiny soon in federal appellate court.

Notes Hasen:

The State of Wisconsin tries to spin this as a win.

I assume the next step will be a request for a stay at the 7th Circuit, and one question is whether this goes to the same panel that just stayed the affidavit softening in the first WI voter id case. 

The plain language of the Peterson order puts the lie to the Republican spin-doctors at the Wisconsin Dept. of Justice. Writes Hasen, noting:

IT IS ORDERED that defendants’ motion to stay the court’s permanent injunction pending appeal, Dkt. 241, is DENIED in substantial part. As explained above, only the provisions of the injunction requiring the state to reform its IDPP within 30 days of the date of the court’s opinion on the merits are STAYED pending the outcome of the parties’ appeals. The rest of the injunction remains in effect, [p. 12, August 11, 2016 order].

Wisconsin corporate media without exception has brought the Republican spin.

Why is the DoJ spinning instead of informing and reporting? Because the Wisconsin DoJ is a Republican operation.

The Republican effort took a new turn at the polling place last Tuesday, as Republicans are using control of the polling place to obstruct voters, in violation of Wisconsin statutes and administrative rules, to obstruct voters.

This points to potential trouble at the polling place, and one hopes placement of U.S. DoJ officials in Dane, Racine and Milwaukee counties, as Republicans look to obstruct on a larger scope in November.

Madison, Wisconsin Fights Republican Voter Obstruction

Wisconsin votes on Tuesday in the April 4 spring elections.
Wisconsin has seen among the nation's worst anti-voting
rights measures enacted by Republicans. One city,
Madison, is successfully fighting Republican
voter obstruction.

Madison, Wisconsin — Madison municipal clerk, Jean Phelps, offered a training session for new poll workers on March 25 at the Meadowridge Library on the city's southwest side.

Ms. Phelps pointed out to the assembly of some 50 people that their job duties do not include a legal mandate to "interrogate" voters on the coming Election Day, April 4.

Delivering a one-hour PowerPoint presentation, Phelps read several emails from aggrieved voters who say they felt harassed and bullied by election officials, an increasingly common practice committed by the Republican Party of Wisconsin-named poll workers and other citizens carried away with the prospect of serving in an official capacity in an office of public trust.

Phelps' training session comes as numerous Madison election officials implement measures recognizing the powerful, affirmative right to vote in the Wisconsin Constitution, Suffrage - Article III, (Ballotpedia).

City election initiatives notable under the tenure (2006-present), of City Clerk Maribeth Witzel-Behl, reveal an apparent effort to treat voters as human beings and citizens vested with the right to vote.

Voting rights directives by the City Clerk's office come as other city-wide initiatives have been implemented following a federal voting rights decision in 2016 that struck down as unconstitutional numerous Republican Party-passed changes to Wisconsin election law, (One Wisconsin Institute v. Thomsen).

In One Wisconsin Institute v. Thomsen, ((Mal Contends), (U.S. District Court of the Western District of Wisconsin (Case 15-cv-324) (Moritzlaw)), much of the Republicans and only Republicans' transformation of election law was swept away, though the case has been appealed by Wisconsin's Republican attorney general.

Wrote election law expert, Rick Hasen: "[One Wisconsin Institute v. Thomsen] is a pretty sweeping opinion, which rejects many of the state’s arguments for its restrictive voting rules as pretexual, (misrepresentative), and really aimed at giving Republicans advantage in elections. The judge was particularly skeptical of measures which made it harder to vote in Milwaukee, with its large population of minority voters, and to a lesser extent, Madison, a liberal stronghold in the state."

Madison has expanded the number and hours of early voting (in-person absentee voting) locations throughout the city in the nine months following One Wisconsin Now.

In the typically low-turn-out Spring primary held in February, polling places throughout Madison saw record-breaking early voting, (Capital Times).

At the late March training session Madison's Phelps noted that many polling places in February ran out of ballots.

Witzel-Behl's work has gained plaudits from voting rights activists on social media. The Dane County League of Women Voters noted in late March a massive increase in voter turn-out on the University of Wisconsin-Madison campus, for example, citing figures kept at the city of Madison website.

The non-partisan Wisconsin Election Protection umbrella group similarly has noted Witzel-Behl's work and that of others who are fighting Republican voter obstruction in their official capacities.

Looming is the white, racist and punishing Republican Party which views minority voting as not-quite-legitimate.

Wisconsin Photo Voter ID Suit Filing Details DMV Refusals of Voters

There is one federal challenge to the Republican-passed photo voter obstruction law in Wisconsin and the Republican effort to roll back voting rights.

The challenge is One Wisconsin Inst., Inc. v. Nichol, (2015 U.S. Dist. LEXIS 107781).

One Wisconsin v. Nichol was advanced in a December 2015 ruling by U.S. District Judge James D. Peterson who rejected a motion to dismiss by members and staff of the Wisconsin Government Accountability Board acting in their titular capacity.

Concluded Judge Nichol in his December 2015 opinion, " ... it is also true that when a state regulation subjects voters' rights 'to 'severe' restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance.' Id. at 434 (internal citations and quotation marks omitted). As defendants concede in their reply, the Equal Protection Clause is the mechanism through which to guard against such impermissible restrictions."

Today, One Wisconsin Now announced a new filing detailing severe state restrictions to voting, restrictions that destroy the right to vote of Wisconsin citizens.

The filing concerns Wisconsin Department of Motor Vehicles stopping or severely impeding Wisconsin voters from obtaining the necessary photo voter ID that is a precondition to vote.

This filing describes the consequences warned about by voting rights activists when the Scott Walker's administration in 2011 instructed the Wisconsin Department of Transportation head to direct DMV employees "to refrain from actively informing the public about the ability to receive a free identification card for the purposes of voting," (Nichols, The Capital Times).

An injunction motion after Wisconsin's April 5 presidential primary appears likely.

The One Wisconsin Now press release is reproduced below:

New Filing in Voter Rights Lawsuit Exposes Serious Flaws at DMV Providing Voters With IDs,
Erroneous Denials and Bureaucratic Bumbling Taking the Franchise Away From Legal Voters

Madison, Wisconsin — A new filing in a lawsuit brought by One Wisconsin Institute and other voter rights advocates exposes serious flaws at the Department of Motor Vehicles (DMV) in the process for providing Wisconsinites with the ID that voters must now produce to cast their ballot at the polls. As part of the voter ID law adopted by Gov. Scott Walker and the Republican controlled legislature, individuals are ostensibly able to request a free identification card from the DMV under certain circumstances. But bureaucratic delays and improper denials are preventing otherwise legal voters from obtaining the ID now required to vote.

“There has been a comprehensive, systematic effort in Wisconsin to make voting harder and more complicated for targeted populations by Republican politicians attempting to gain an unfair partisan advantage,” said Scot Ross, One Wisconsin Institute Executive Director. “The documented failures of the DMV to provide legal voters with the ID they now need to exercise their right to vote is yet another sad episode in the assault on democracy underway in Wisconsin.”

The suit, filed in federal court in Madison, outlines more than a dozen policies that have made voting in Wisconsin more challenging for eligible citizens and seeks to strike down various restrictive voting measures put in place by Governor Scott Walker and the Republican State Legislature since 2011.

The latest filing by the plaintiffs notes that in the state voter ID case, the state supreme court held that the DMV had to exercise its discretion under the “extraordinary proof” petition process to permit voters to obtain exemptions for having to pay for birth certificates or other government records needed to obtain voter ID. An analysis of this process and numerous examples shows how this process is resulting in otherwise legal voters being denied the opportunity to exercise their right to vote.

An internal DMV analysis found an error rate of 27 percent, meaning more than one in four petitions to obtain a voter ID under the extraordinary proof process were mishandled between March and August of 2015. The agency admits numerous instances of petitions being suspended because a person gave up in anger or frustration.

And the problem is expected to get worse. The DMV is expecting increased demand for voter IDs this year due to the presidential election and already reports a backlog of dozens of “open” petitions, has cut back on staff, and has no extra staff or budget allocated to deal with the expected increased demand.

The filing includes several examples of how the DMV process is broken, resulting in eligible individuals being denied IDs, and therefore their right to vote, including:

•  Refusing to provide an ID to a woman who had lost the use of her hands and couldn’t sign an application. The woman brought her daughter with her to sign the application and even provided her daughter with power of attorney giving her permission to sign, but the DMV did not allow it;
• Denying the petitions of many eligible voters because of minor discrepancies in the spelling of their names or uncertainties about their exact dates of birth—even though DMV acknowledges it has no doubts these disenfranchised voters are U.S. citizens;
•  “Turning away” a senior citizen who had been ‘born in a concentration camp in Germany,’ and his German birth certificate had been lost in a fire. That citizen was ultimately granted an ID, but only after extraordinary effort on his behalf to comply with absurd demands by the DMV.

Ross concluded, “When the DMV erroneously denies someone an ID or their incompetence and bureaucratic delays result in a person giving up in anger or frustration, they are denying a legal voter their right to vote. And that is unacceptable.”
#

Massive Propaganda Campaign to Privatize Wisconsin Public Schools, Exposed by One Wisconsin Now

Have some money; have some more. We're here to save
schools and just help. It's who we are. As Scott Walker says:
"I care too much about the people of this state
not to empower them to control their own destiny."

The Milwaukee-based Bradley Foundation is among the "largest funder of the rightwing propaganda machine in the country," notes One Wisconsin Now.

But the Bradley Foundation's targeting of our state may have been understated.

A new report released by One Wisconsin Now (OWN) reveals the orchestration of the "funding of a massive campaign to advocate for the privatization of schools in Wisconsin."

This report comes right as Scott Walker and an extremist group of Republicans in the state legislature—elected to office through gerrymandered districts in 2012—push through Walker's 2013-15 budget.

In one finding, OWN reports Bradley has spent some $31 million since 2001 promoting education privatization and supporting various talking heads emitting rightwing propaganda.

One democrat, State Sen. Lena Taylor (D-Milwaukee), is looking to grab some of that rightwing money for herself. [Taylor is a Democrat for 'school reform', and belongs to a front group, which the Washington Post notes is financed 'largely by hedge fund managers' on Wall Street].

The consequences for Wisconsin's public school system, already being systemically starved by the Republican Party, are grave.

And this diverting of money from schools to privatization schemes is estimated to cost Wisconsin taxpayers a whopping $1.8 billion in 2014-15, OWN reports.

The Bradley Foundation will do Walker's propaganda, with a lot of help from their friends.

As a whole host of rightwing-GOP outlets such as the MacIver Institute, the Wisconsin Reporter, and the Wisconsin Policy Research Institute (all of whom pretend their organizations are legit) make excuses or simply invent facts as Walker is forced to face the jobs disaster that is happening before our very eyes, the GOP's MacIver Institute will ask Wisconsin citizens to avert their gaze as Walker pretends to be preparing for his run at the 2016 GOP nomination for the presidency.

No comment though from the usual GOP suspects.

"Michael Grebe, president and chief executive officer of the Bradley Foundation, declined to comment on the One Wisconsin report, which notes repeatedly that he is Walker's campaign chairman," notes Dan Bice today.

ALEC, Koch Brothers, the MacIver Institute (arguably the most destructive of GOP front groups), the Wisconsin Reporter, and the Wisconsin Policy Research Institute—not our parents' Republican Party.

Pandemic-Caused Mail-in Ballot Push Reduces Effect of Frank Easterbrook Opinion Against Voting Rights

Madison, Wisconsin — Wisconsin pro-voting advocates are urging citizens to act now in an effort to help voters cast their votes and have their votes counted.

Public and private initiatives protecting this foundational right come as anti-voting forces aligned with the Republican Party use the COVID 19 crisis, litigation and sabotage of the U.S. Post Office to decrease voter turnout.

Prior to the Coronavius COVID 19 pandemic, Wisconsin voting rights workers noted with concern a then-pending voting rights case, decided in June 2020, Luft v Evers; One Wisconsin Institute, Inc. v Jacobs, (Nos. 16-3003, 16-3052).

Judge Frank Easterbrook, the anti-voting forces' go-to judge on the U.S Court of Appeals for the Seventh Circuit, penned a bizarre opinion in this appellate circuit now overrun with Republican-appointed judges thanks to Senate Democrats' and Pres Obama's political incompetence.

Easterbrook writes that statutory discrimination against minorities is not discriminatory if discrete demographics vote in a similar political fashion and reside prominently in urban jurisdictions, Luft v Evers; One Wisconsin Institute, Inc. v Jacobs, (Nos. 16-3003, 16-3052), (Marley, Milwaukee Journal-Sentinel). 

So, Easterbrook reasons, the Voting Rights Act and the First Amendment lose force if people who can be measured by the same ethnicity, also vote in an identical political fashion as targeted by statute.

Easterbrook reinstated Republican-enacted restrictions against early voting.

But the pandemic makes in-person, early voting a risky proposition.

Now, a massive, pandemic-induced absentee-ballot effort seeking to overcome other Republican anti-voting efforts likely will blunt the effect of anti-early-voting efforts like Luft by promoting early, mail-in ballots.

This pandemic, second-order effect on voting rights thus can be seen in isolation this election cycle as a happy accident following Luft v Evers; One Wisconsin Institute, Inc. v Jacobs.

Though Luft v Evers; One Wisconsin Institute, Inc. v Jacobs reinstated Republican-enacted restrictions on early, in-person voting, the decision is likely to have less importance now that a massive push for mail-in absentee voting has been launched after the pandemic hit.

The nonpartisan counteroffensive against Republicans is joined by election clerks in metro voting districts notes In These Times, pointing to public-private partnerships that have emerged in reaction against the Republican Party, (WISC-TV).

Wisconsin Republicans' Lame-duck Act Against Voting Struck Down by Federal Judge

Federal judge strikes down Republican-enacted voter
restrictions in Wisconsin

Judge: "This is not a close question"

Madison, Wisconsin — A Republican attempt to obstruct voters in Wisconsin metro districts was struck down today in a terse five-page opinion and order.

The case is ONE WISCONSIN INSTITUTE, INC., CITIZEN ACTION OF WISCONSIN EDUCATION FUND, INC., RENEE M. GAGNER, ANITA JOHNSON, CODY R. NELSON, JENNIFER S. TASSE, SCOTT T. TRINDL, MICHAEL R. WILDER, JOHNNY M. RANDLE, DAVID WALKER, DAVID APONTE, and CASSANDRA M. SILAS,Plaintiffs,v.MARK L. THOMSEN, ANN S. JACOBS, BEVERLY R. GILL, JULIE M. GLANCEY, STEVE KING, DON M. MILLS, MICHAEL HAAS, MARK GOTTLIEB, and KRISTINA BOARDMAN, all in their official capacities.

Reports Patrick Marley in the Milwaukee Journal-Sentinel:

U.S. District Judge James Peterson concluded the new limits on early voting are invalid because they so closely mirror ones he struck down as unconstitutional in 2016. His decision also threw out parts of the lame-duck laws affecting IDs and other credentials that can be used for voting. 

"Today’s court ruling is a victory for the citizens of Wisconsin and a rebuke to their defeated former governor and his cronies in the state legislature. Every voter in the state should be asking one question: why are Republicans in the Wisconsin legislature so afraid of the people they claim they want to represent? Though we are heartened by this decision we will continue to fight any further efforts designed to undermine democracy in Wisconsin or any other part of our nation," said former United States Attorney General Eric Holder, with the National Redistricting Foundation, a major voting rights group, (Huffington Post).

Wisconsin Republicans have attacked voting rights the last eight years in a sweeping legislative initiative aimed at voters who tend to vote non-Republican.

In 2018, Republicans lost ground in metro voting districts across the state following a sweeping federal court order against its legislative effort, reported Craig Gilbert in the Milwaukee Journal-Sentinel.

Without stopping voters in major population jurisdictions, Republican Party political power in Wisconsin is imperiled.

Concludes U.S. District Judge James Peterson:

Plaintiffs contend that 2017 Wisconsin Act 369, enacted by the Wisconsin legislature in December 2018, violates injunctions issued in this case in 2016. So plaintiffs seek an order enforcing the injunction against three provisions of Act 369:
(1) limits on the time for in-person absentee voting;
(2) restrictions on the use of student identification cards for voting; and
(3) a time  limit  on  the  validity  of temporary  identification  cards issued  under  the  ID  Petition
Process . Dkt. 330. The court will grant plaintiffs’ motion to enforce the injunctions.
This is not  a  close  question:  the  three  challenged  provisions  are  clearly  inconsistent  with
the injunctions that the court  has issued in this case, (p. 1).

Notes Ari Berman in Mother Jones: "This is the second time a federal court has blocked Wisconsin Republicans from cutting early voting in the state."

The 2016 federal litigation is One Wisconsin Institute v. Thomsen, now before a three-judge panel of the United States Court of Appeals for the Seventh Circuit.

With the election of a new pro-voting rights attorney general and governor, Wisconsin is now in a position to take a rare pro-voting rights stance in federal litigation, a change from the last eight years.

The voting rights win was celebrated by litigators and voting rights workers minutes after the decision was released.

BREAKING: Wisconsin federal court stops GOP effort to restrict voting rights. Big win for the @PerkinsCoieLLP political law team on behalf of @onewisconsinnow and @RedistrictFdn. pic.twitter.com/e81IEJGkw9

— Marc E. Elias (@marceelias) January 17, 2019

Federal judge tosses latest GOP attacks on voting in WI! "The Republican attacks on voting rights were unconstitutional when they were passed, they were unconstitutional when the judge struck them down and they are unconstitutional now.” -- One Wis Now Exec Director Scot Ross

— One Wisconsin Now (@onewisconsinnow) January 17, 2019

Wisconsin Voting Rights Trial: GOP's DoJ Is Back to Citing Polls as Constitutional Argument

Wisconsin Republican Party, DoJ Keep Citing Polling in Federal Litigation

At oral argument in the voting rights case, Frank et al v. Walker et al (No.: 14-2058), heard at the Court of Appeals for the Seventh Circuit in August 2014, Wisconsin DoJ Assistant Attorney General Clayton Kawski argued Wisconsin's restrictive photo voter ID is constitutional because results of a polling question on voter ID, (Marquette University Law School), showed more Wisconsin citizens favored voter ID than opposed it, (14-2058, Ruthelle Frank v. Scott Walker oral argument, civil,  09/12/2014) (2-minute, 34-second mark).

This argument on voting restrictions' constitutionality conditioned on polling numbers was ridiculed by the Seventh Circuit's three-judge panel.

"What conceivable relevance is a polling number to this litigation?," said Judge Frank Easterbrook, a voting rights opponent and author of the opinion upholding Wisconsin's photo voter ID law.

Seconds later after Judge John Tinder asked Clayton Kawski if popular laws can be unconstitutional, Kawski was forced to backtrack and admit the irrelevance of a polling figure to the constitutional questions.

One Wisconsin Institute v. Nichol 

The polling argument today is back at another Wisconsin voting rights trial, One Wisconsin Institute v. Nichol (U.S. District Court of the Western District of Wisconsin (Case 15-cv-324).

Notes Scott Ross, One Wisconsin Institute Executive Director on Facebook: 

So on day five of our vote trial, I have had my fav moment. The defense, [the Wisconsin DoJ], was asking our expert witness about her research on the absence of voter fraud in Wisconsin elections and noted 'polls show people support voter ID.' Our attorney came back with 'polls show some people believe our president is a Muslim,'

Polling figures as the basis for the constitutionality of laws designed to destroy the vote.

Now, that's a novel argument, but good enough for the Republican Party of Wisconsin and its adjunct operation in the Wisconsin Dept. of Justice.

Why is the Republican Party's DoJ advancing this discredited argument?

Wisconsin Early Voting Gets Surprise Boost from Ballot Mail-in Case, Watson v RNC

Molly McGrath (left), a voting rights attorney with the ACLU, 
works with Madison residents to get IDs they need to vote under 
Wisconsin’s strict voter-ID law. Early voting efforts by election 
clerks in metro voting districts increased voter turnout following
a pro-voting rights win in federal district court in One Wisconsin 
Institute v. Thomsen (2016) that swept away Wisconsin Republican 
voter-obstruction legislation. Today, early voting received another 
boost from the U.S. Supreme Court in the election law case that 
rejected Republicans' legal theory that federal law requires 
states to reject absentee ballots received after election day. Early 
voting was not at issue in Watson v Republican National Committee,
and came up in oral arguments in March 13, 2016.
(Photo courtesy of Molly McGrath) 

Republican Legal Theory Limiting Voting Is Rejected by U.S. Supreme Court

MADISON, WIS. — A  major front in Trump's war against voting was dealt a 5-4 defeat Monday in the closely watched election law case, Watson v. Republican National Committee.

The U.S. Supreme Court majority opinion is authored by Justice Amy Coney Barrett, and brought together Chief Justice John Roberts and the Court's three liberal justices.

Trump, the U.S. DoJ and national and state Republicans had decided states should only count mail-in ballots received on or before Election Day, federal law requires states to reject absentee ballots received after election day. Both propositions were rejected.

Republicans challenged a Mississippi statute that allows ballots postmarked by Election Day.

Mississippi is one of roughly 30 States that count some absentee ballots mailed by election day but received afterward, Barrett noted.

Republican Legal Theory Rejected

The Republican position is soundly rejected in Watson v. Republican National Committee, in which Justice Barrett concludes, "The question today is not whether requiring ballots to be received by election day is a good or bad idea; the question is whether the idea has made its way into the United States Code."

Early Voting Gets Explicitly Affirmed

Early voting efforts, especially in Wisconsin that has substantially utilized early voting efforts by election clerks in metro voting districts the last eight years, were given an unexpected affirmation by Watson v. Republican National Committee, after years of state partisan battle with Wisconsin Gov. Scott Walker, (2011-19).

The issue of early voting is not of issue in Watson, but arose in oral arguments and in briefing, in which litigants and the Court argued whether federal election-day statutes prevent states from counting mail-in ballots that are postmarked by Election Day, but arrive up to five days later, as in Mississippi.

In oral arguments justices frequently push lawyers to apply their legal theories to hypothetical situations. Both the Republican National Committee and U.S. Department of Justice attorneys agreed in oral arguments federal election-day statutes permit early voting, Barrett pointed out.

Paul D. Clement, Alexandria, Va.; and D. John Sauer, Solicitor General, U.S. Department of Justice, Washington, D. C. (for United States, as amicus curiae) argued the RNC's case at oral arguments as respondents.

Early Voting in Wisconsin

In federal district court in One Wisconsin Institute v. Thomsen (2016) a landmark voting rights win swept away much Wisconsin Republican voter-obstruction legislation, 2013 Wisconsin Act 146, that included curtailing in-person absentee voting, early voting, aimed at minorities in Madison and Milwaukee.

In One Wisconsin Institute v. Thomsen, (2016), U.S. District Judge James Peterson writes:

Plaintiffs (voting rights advocates) have adduced evidence that weekend and evening voting is particularly important for socioeconomically disadvantaged voters, and that, in Wisconsin and nationwide, African American and Latino voters have made particularly good use of various forms of early voting. 
Early voting in groups on Sundays—including church-supported “Souls to the Polls” efforts—is a widespread practice among African American voters, in Wisconsin and nationwide.
But again, a disparate impact, without more, does not prove intentional discrimination.
But plaintiffs have more. Statements by legislators show that Act 146 reduced the hours allowed for in-person absentee voting specifically to curtail voting in Milwaukee, and, secondarily, in Madison. [State] Senator Grothman made repeated statements objecting to the extended hours for in-person absentee voting in Milwaukee and Madison, indicating that hours for voting needed to be “reined in.” On the floor of the senate, he said, “I want to nip this in the bud before too many other cities get on board.” 
Senate Majority Leader Scott Fitzgerald made similar comments. As he put it, “But the question of where this is coming from and why are we doing this and why are we trying to disenfranchise people, I mean, I say it's because the people I represent in the 13th district continue to ask me, ‘What is going on in Milwaukee?’ ...
The legislature's ultimate objective was political: Republicans sought to maintain control of the state government. But the methods that the legislature chose to achieve that result involved suppressing the votes of Milwaukee's residents, who are disproportionately African American and Latino. The legislature did not act out of pure racial animus; rather, suppressing the votes of reliably Democratic minority voters in Milwaukee was a means to achieve its political objective. But that, too, constitutes race discrimination.

Many Wisconsin cities did get on board promoting early voting in response to the District Court's 2016 evisceration of 2013 Wisconsin Act 146.

Now, the U.S. Supreme Court has given One Wisconsin Institute v. Thomsen precedent protection in a case that will control expected Republican legal and state counter offensives.

Notes Jacob Knutson on early voting in Watson v. Republican National Committee in Democracy Docket:

In the case, [Watson] the RNC argued that Mississippi’s law offering a grace period for late-arriving ballots mailed by Election Day violated the election-day statutes: a set of federal laws that designate 'the Tuesday next after the first Monday in November… as the day for the election' for federal elections. ...

[T]he Court disagreed, ruling that the states 'do not set a deadline for ballot receipt' and therefore 'do not prevent Mississippi from counting ballots postmarked after election day yet received afterward.'

Barrett added that if the Court adopted the RNC’s legal theory in the case, 'early voting would also be at risk.'

'At bottom, plaintiffs’ theory is that because we are governed by 19th-century election-day laws, we are also governed by 19th-century voting practices,' she wrote. 

Going further, Barrett warned that, 'Carried to its logical conclusion, this theory would call into question the way modern elections work.'

Barrett noted in the opinion that the RNC and Department of Justice (DOJ) —  which joined the RNC in challenging Mississippi’s law — both agreed in oral arguments earlier this year that the election-day statutes permit early voting.

'Although the election-day statutes refer to a particular ‘day’ for the election, plaintiffs do not contend that everything must occur on that day,' Barrett wrote. 'For instance, they do not object to early voting or dispute that officials may count votes and certify a winner after election day."

Though he dissented from the Court’s decision on late-arriving mail ballots, Justice Samuel Alito agreed with the majority that the election-day statutes permit early voting.          

Thus, we see a Supreme Court voting rights case deciding the issue presented—affirming states can allow one class of voters to be counted, those whose absentee ballots arrive after Election Day while being postmarked by Election Day—and explicitly protecting a different class of absentee voters, early voters, after discussion in oral arguments.

There will a reckoning from Republicans in Wisconsin, and across the nation.