Case is larger than Wisconsin, presenting a moment of truth for American democracy and at least two Justices on the high court...
By Ernest A. Canning on 10/2/2014, 6:06pm PT  

On Thursday morning, the ACLU filed an Emergency Application to Vacate [PDF] with the U.S. Supreme Court to vacate a Sept. 14, 2014 stay of a U.S. District Court ruling that had, before the stay, permanently blocked enforcement of a Republican-enacted, Wisconsin photo ID voting law.

The civil rights organization argues that the emergency ruling is needed to prevent mass disenfranchisement and electoral chaos during the upcoming Nov. 4 election. It asks that the Court "leave that injunction in force pending the Seventh Circuit's issuance of a decision on the merits."

As the District Court judge had found, before his decision was overturned by a partisan ruling at the Appellate Court level, Wisconsin's attempted restriction on the voting rights of legally registered voters poses a real and present danger that some 10% of the Badger State's duly registered electorate will likely be prevented from voting in the rapidly approaching November 4 election.

The District Court's injunction had been stayed as a result of a deadlocked court, in which five bipartisan members of the ten-judge U.S. 7th Circuit Court of Appeal described in a Sept. 29 Opinion [PDF] as a "brazen" and "shocking" disregard of both precedent and the right of the minority to vote. That "shocking" position had been advanced by the attorneys representing Republican Gov. Scott Walker and first accepted by an all-GOP, three-judge panel that had issued an extraordinary, 11th hour decision to vacate the lower court's injunction.

The case now poses an enormous test for at least two key Justices on the high court. Will Chief Justice John Roberts and Justice Anthony Kennedy adhere to the very principles they signed on to when they joined the plurality opinion authored by former Justice John Paul Stevens in the landmark 2008 SCOTUS decision in Crawford v. Marion County Board of Elections? That case upheld Indiana's Photo ID law against a "facial" challenge solely because, in the words of the plurality opinion, there was no evidence before the court at the time to prove anyone would be disenfranchised or that their right to vote would be unduly burdened by the law.

In signing onto Steven's lead opinion, both Roberts and Kennedy agreed that election laws, including photo ID voting restrictions, are subject to the Anderson/Burdick test. That test mandates that courts, on a case-by-case basis, 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. Given that the state has offered no legitimate reason for potentially disenfranchising as much as 10% of Wisconsin's lawfully registered voters, Roberts and Kennedy cannot refuse to lift the stay without a total abandonment of principle...

'Dead wrong'

It would be far too generous to describe the extraordinary decision rendered in this case by an all GOP, three-judge panel, led by Judge Frank H. Easterbrook, a member of the Robert Bork-founded, Koch Brothers-funded "Federalist Society", as simply erroneous.

In their portion of the evenly-divided, Sept. 29 opinion, the all-GOP judges completely mischaracterized the 2008 Indiana case which they used to defend their decision, by writing:

Crawford concluded that requiring would-be voters to spend time to obtain photographic identification does not violate the Constitution. "For most voters who need them, the inconvenience of making a trip to the [department of motor vehicles], gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting."

That statement, as described by the sharply worded opinion written by Judge Ann Williams and joined by four-other 7th Circuit jurists, including the GOP-appointed Richard Posner, the author of the original 7th Circuit panel decision in Crawford, is utterly disingenuous and, as they described it in no uncertain terms, "dead wrong"...

That premise is dead wrong. The Supreme Court opinion in Crawford made very clear that its decision was specific to the evidence in the record in that case…The Court pointed out that the district court there found that the petitioners "had 'not introduced evidence of a single, individual Indiana resident who will be unable to vote as a result of [Indiana's voter identification law] or who will have his or her right to vote unduly burdened by its requirement.'"

'Different from Crawford in every way'

Indeed, as we have noted in our coverage of the ACLU's original complaint in this case, in Crawford, the District Court found that 99% of Indiana's registered voters already possessed the requisite photo ID needed to vote under the law in Indiana in 2008. That state had full-time DMVs in every county, with some 124 offices open on weekends, where voters without ID could obtain a state-issued photo ID to vote.

By way of sharp contrast, as Judge Williams explained, Wisconsin not only has far fewer DMV offices, but most of them "are only open two days a week (and these are weekdays, not weekends)." To avoid mass disenfranchisement in next month's election, those DMVs would have to issue 6,000 photo IDs each day prior to Nov. 4 in order to cover the approximately 300,000 registered voters who currently lack the now-requisite state-issued Photo ID.

It would be impossible for many of those voters born in other states --- including some 50% of Milwaukee's registered voters who presently lack the state-issued Photo ID --- to obtain birth certificates needed to obtain a state issued photo ID in time for the election. According to the Wisconsin DMV, that process takes months to complete.

Thus, Williams observed, the "record that has been made in this litigation is entirely different from that made in Crawford. In every way."

While Judge Williams described a position taken by "the state" (meaning the attorneys representing Wisconsin's Republican Governor Scott Walker) as both "brazen" and "shocking," those descriptors apply with equal force to those 7th Circuit judges who have enabled this assault on the fundamental right to vote, while using inaccurate, disingenuous claims to do so, even while ignoring the hard evidence that undermines their premise.

Specifically, Judge Williams wrote [emphasis added]:

The state brazenly responds that the district court found that "more than 90% of Wisconsin's registered voters already have a qualifying ID" and can vote and that "the voter ID law will have little impact on the vast majority of voters." But the right to vote is not the province of just the majority. It is not just held by those who have cars and so already have driver's licenses and by those who travel and so already have passports. The right to vote is also held, and held equally, by all citizens of voting age. It simply cannot be the answer to say that 90% of registered voters can still vote. To say that is to accept the disenfranchisement of 10% of a state's registered voters; for the state to take this position is shocking.
...
Our court should not accept, as the state is willing to do, the disenfranchisement of up to 10% of Wisconsin's registered voters. We certainly should not do so when there is no evidence in Wisconsin whatsoever of the type of fraud the law is designed to prevent against.

Williams also expressed dismay over the utter disregard for the sanctity of absentee ballots already mailed to voters without instructions to include copies of Photo IDs when returning, many of which have already been cast.

Those thousands of absentee ballots that were mailed to voters before the panel's order? They do not count when returned in the manner their instructions direct, for they do not comply with the Wisconsin voter identification law.

Moment of truth for SCOTUS

The pending WI decision, while potentially a make or break ruling for Republican Gov. Scott Walker's "toss up" re-election bid against Democrat Mary Burke, has far greater import than it may appear. In light of other Supreme Court decisions, which have served to drown out the voices of ordinary citizens by extending, to those with extraordinary wealth and their corporations, the unlimited ability to swamp our airwaves with political propaganda (aka political ads), an unscrupulous decision by the Court in this case could well mark a giant step towards converting our supposedly constitutionally-protected, representative democracy into an oligarchy.

There is no middle ground. Either Chief Justice Roberts and Justice Kennedy adhere to the principles they themselves signed onto in Crawford by voting to immediately lift the 3-judge, 7th Circuit stay, or they engage in nothing less than a judicial coup that will perhaps serve as the last nail in democracy's coffin.

Whatever decision is rendered in this case will most likely also be applied to federal challenges against similar Republican voter suppression laws now pending in court in Texas, North Carolina, Arkansas and elsewhere. Those cases as well are likely to find their way to the Supreme Court, and will be judged by a similar standard the Justices apply to the WI case. If Roberts and Kennedy now overturn their own opinions from 2008, and ignore their own precedent in other cases, in which they've blocked last minute changes to voting laws which could be better settled after the heat of the election has passed, all bets are off for the future of American democracy.

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.

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