Wisconsin Attorney General Is Just Another GOP Hack

Wisconsin Attorney General J.B. Van Hollen is again using his office in service to the Republican Party of Wisconsin, instead of the people of Wisconsin.

It doesn't have to be this way.

Yesterday, Van Hollen appealed Wisconsin Federal District Judge Lynn Adelman's order and opinion finding Wisconsin photo voter ID law violates the U.S. Constitution and Section 2 of the Voting Rights Act.

The appeal will heard by the Court of Appeals for the Seventh Circuit.

Van Hollen could refuse to defend the unconstitutional law that after a November 2013 trial that showed that Wisconsin Act 23 could disenfranchise as many as 300,000 Wisconsin voters, among them minorities, the elderly, disaffected veterans, students, technical college students and those who have recently moved their residences.

Newspapers, some of which are GOP-leaning in their editorial pages, have urged Van Hollen to stop wasting money and time defending a law intended to make it more difficult for Wisconsin citizens to vote, in furtherance of the careers of Republican Party officeholders.

Van Hollen's decision comes as no surprise as he vowed to appeal in early May, nor does Scott Walker, James Sensenbrenner and the Republican Party's tenacious pursuit and abiding support of blocking Wisconsin voters from voting.

It bears repeating that in 2008 Van Hollen tried to use the Help America Vote Act to suppress Democratically leaning voters to stave off landslide defeat for the McCain-Palin ticket of which Van Hollen served as co-chair.

In 2008, WisPolitics uncovered an audio recording revealing Van Hollen promising such action on during the Republican National Convention held in St. Paul, Minnesota, after multiple conversations with Reince Priebus, then Wisconsin GOP party chairman, after Van Hollen denied holding secret conversations on the suit with Republican officials.

"(T)here was no discussion with anybody involved in leadership with the Republican Party (or the McCain campaign) about this (voting rule) lawsuit before it was brought," Van Hollen said.

WisPolitics blew that lie out of the water after uncovering audio of Van Hollen talking with the Republican leadership promising legal action in a corruption of his office.

Though Republicans often contend that state photo voter ID laws have been found constitutional in Crawford vs. Marion County Elections Board (2008) by the U.S. Supreme Court, Earnest A. Canning knocked down this contention in his piece from early May in the Brad Blog.

Canning's analysis is required reading for anyone reporting on the GOP voter obstruction and photo voter ID laws.

Writes Canning:

In 2006, Indiana Republicans enacted the first such polling place Photo ID law in the nation. That case made it all the way to the U.S. Supreme Court in Crawford vs. Marion County Elections Board (2008), before it was allowed to be enforced by the state.

 

The Court's ruling in the case, however, was far different from how Republican defenders of such laws have portrayed it ever since, including Texas Attorney General (and Gubernatorial candidate) Greg Abbot, who falsely claimed last year, in response to the U.S. Dept. of Justice's lawsuit against his state's similar law, that "The U.S. Supreme Court has already ruled that voter ID laws do not suppress legal votes." In fact, the Court did no such thing.

 

As this site, and numerous others, have repeatedly noted, Crawford involved the allegation that Indiana's first-in-the-nation Photo ID voting restriction was unconstitutional "on its face." Six of the U.S. Supreme Court's nine Justices rejected that facial challenge, but they decidedly did not, as Abbot incorrectly declared, find that "voter ID laws do not suppress legal votes."

 

What they did do, however, is establish the test that must be applied to such laws in determining their constitutionality. At the core of his decision in the Wisconsin case, Judge Adelman applied that test with careful measure.

 

As Judge Adelman observed, Crawford lacked a "majority opinion" --- that is an opinion in which five Justices agreed on the reasons for the decision. Instead, there were four separate opinions: a lead opinion written by Justice John Paul Stevens (joined by Chief Justice Roberts and Justice Kennedy), a concurring opinion written by Justice Antonin Scalia (joined by Justices Thomas and Alito), a dissenting opinion written by Justice David Souter (joined by Justice Ginsburg) and a separate dissent by Justice Breyer.

 

While the various Justices agreed and disagreed on a number of points throughout those opinions, Judge Adelman notes that six of the nine Justices each concurred that the correct approach is to apply what he describes as the Anderson/Burdick test, which requires the courts, on a case-by-case basis, to measure a law's potential damage to voters' right to vote, against the specific claims made by the state as to why such additional burdens and restrictions are necessary.

 

"Even very slight burdens," he wrote, "'must be justified by relevant and legitimate state interests 'sufficiently weighty to justify the limitation.'"

 

In fact, all nine Justices in Crawford agreed that the Anderson/Burdick balancing test applied in the case. The difference between the dissenting opinions and the lead opinion written by Justice Stevens is based exclusively on their respective views on the status of the actual evidence on record before the Court.

 

In his dissent, Justice Souter opined that the Hoosier State's polling place Photo ID law "threatens to impose nontrivial burdens on the voting right of tens of thousands of the State's citizens...and a significant percentage of those individuals are likely to be deterred from voting."

 

In comments to The BRAD BLOG last October, Bill Groth, attorney for the lead plaintiff in the Crawford case, insisted that he had, in fact, presented an adequate record of undue burden on voters in the case. Justice Stevens, however, didn't see it that way. In his lead opinion, the now-retired Justice observed that "the evidence in the record does not provide us with the number of registered voters without photo identification." He found there was no "concrete evidence of the burden imposed on voters who currently lack photo identification" and reasoned that, based upon the record before the Court, they "cannot conclude that the statute imposes 'excessively burdensome requirements' on any class of voters."

 

The Court did not find that Indiana's law imposed no burden on voters, as Abbott in Texas, and Republicans elsewhere have attempted to claim, but rather, such evidence had simply not been presented to the Court in that case.

 

In October 2013, after Circuit Court Judge Richard Posner, during a book-tour interview, essentially recanted his original majority opinion in the Crawford case --- the one that eventually landed before the Supreme Court. Posner admitted he'd gotten it wrong. Justice Stevens, who retired in 2010, was then asked about his own lead opinion in the case, and told the Wall Street Journal, that he "always thought that [dissenter] David Souter got the thing correct, but my own problem with the case was that I didn't think the record [before the Court at the time] supported everything he said in his opinion."

 

Crawford, Stevens insists, "is state-specific and record-specific." Meaning, the Court's ruling was based on, and applied only to Indiana's version of the law, how it was implemented there, how it affected voters in that particular state, and what information on all of the above was available in the record before the court at the time.