Republicans also face setback on similarly disenfranchising law in TX, as DoJ files Voting Rights Act objection...
By Brad Friedman on 3/12/2012, 4:04pm PT  

In an unambiguous finding stating that "the legislature and governor have exceeded their constitutional authority" and that "voter fraud is no more poisonous to our democracy than voter suppression," a second Dane County Circuit court in less than a week, has determined that the Wisconsin GOP's polling place Photo ID restriction on voters is in strict violation of the state Constitution.

Today, in his 12-page ruling on the plaintiff's motion for summary judgment, Dane County Circuit Judge Richard Niess found that "Act 23," the new law which strips voters of their right to vote unless they are able to produce a state-issued Photo ID at the polling place violates the WI Constitution's Article III which guarantees the right to vote to all state residents who are 18 and over (Section 1) other than in cases where the legislature may place restrictions on convicted felons and those adjudicated to be incompetent (Section 2).

Niess has issued a permanent injunction on the law today, in a complaint filed last October by the League of Women Voters of Wisconsin arguing that legally registered voters would be unconstitutionally barred from exercising their guaranteed right to vote under the Republican's new restrictive law.

"The motion documents reveal no disputed issue of material fact requiring further evidentiary proceedings. [The plaintiffs] present a purely legal issue ripe for decision," Niess declared in his ruling, stating that Article III of the state Constitution "is unambiguous, and means exactly what it says."

Last week, in response to a complaint filed the Milwaukee Branch of the NAACP, another Dane County Circuit Court Judge, Richard Flanagan, also ruled "Act 23" to be unconstitutional on a similar basis. He had issued a temporary injunction on the law in that case, in advance of the state's April primary elections. A trial is currently scheduled to begin on that complaint next month.

In response to both rulings now, the Republican State Attorney General has vowed to appeal, though both his legal and political basis for doing so may be quickly fading with today's second, nearly-identical finding from a second court.

There are also two complaints pending on a federal basis against the same Republican law in Wisconsin. In none of them has the GOP so far been able to demonstrate a case of voter fraud which might have been prevented by the new law. On the other hand, opponents have detailed a mountain of fact-based evidence demonstrating that otherwise legal voters will ultimately be disenfranchised if the law is allowed to take full effect in advance of this year's Presidential election, and as the state gears up for a new round of recall elections meant to unseat the very Republicans responsible for creating the state's new barrier to voting...

Constitutionally guaranteed right to vote

Niess' ruling today was unequivocal and cited a crystal clear 132-year old state Supreme Court ruling which reads in part:

"The elector possessing the qualifications prescribed by the constitution is invested with the constitutional right to vote at any election in this state. These qualifications are explicit, exclusive, and unqualified by any exceptions, provisos or conditions, and the constitution, either directly or by implication, confers no authority upon the legislature to change, impair, add to or abridge them in any respect.
"These are the constitutional qualifications necessary to be an elector. They are defined, fixed and enumerated in that instrument. In those who possess them is vested a high, and, to a freeman, sacred right, of which they cannot be divested by any but the power which establishes them, viz., the people, in their direct legislative capacity. This will not be disputed...
"[N]o constitutional qualification of an elector can in the least be abridged, added to, or altered, by legislation or the pretence of legislation. Any such action would be necessarily absolutely void and of no effect."

But that was 132 years ago in Wisconsin. Today, Niess' ruling added to those findings in his own blistering, no-uncertain-terms ruling:

Defendants unsuccessfully attempt to masquerade the photo ID mandate as merely an election regulation requirement, not a qualification for voting, which is a distinction without a difference. However one wishes to parse the English language, a qualified elector without a photo ID is disqualified from voting under Act 23.
In other words, defendants' argument that the fundamental right to vote must yield to legislative fiat turns our constitutional scheme of democratic government squarely on its head.
The right of a qualified elector to cast a ballot for the election of a public officer, which shall be free and equal, is one of the most important of the rights guaranteed to him by the constitution. If citizens are deprived of that right, which lies at the very basis of our Democracy, we will soon cease to be a Democracy. For that reason no right is more jealously guarded and protected by the departments of government under our constitutions, federal and state, than is the right of suffrage."

Neiss goes on to say that Act 23's "photo ID requirements impermissibly eliminate the right of suffrage altogether for certain constitutionally qualified electors."

He finds that any court which would allow for the infringement upon "a constitutionally-guaranteed sacred right, such as the right to vote...stray[s] into judicial activism at it's most insidious."

Ironically, "judicial activism" is precisely what proponents of the bill --- such as Republican Governor Scott Walker who signed it and Attorney General J.B. Van Hollen who has vowed to appeal both constitutional rulings by Niess, in the League of Women Voters case, and Flanagan in his NAACP case decision last week --- accuse the two judges, without evidence, of carrying out.

"It's a shame activist Dane County judges continue to stand in the way of common sense," says Walker spokesperson Cullen Werwie today.

The proponents of the law, however, have offered no evidence to support their claim of "judicial activism", while both judges rulings appear to rest on sound, conservative, well-found constitutional law.

No evidence of voter impersonation

"Governor Walker looks forward to implementing common sense reforms that protect the electoral process and increases citizens' confidence in the results of our elections," Werwie went on to say in his statement on behalf of Wisconsin's controversial Governor who is likely to face a recall election early this summer.

Yet, in neither legal case were the proponents of Act 23 able to offer even a single instance of Wisconsin voter impersonation --- the only type of voter fraud that might be deterred by a polling place Photo ID restriction.

Despite that deficiency in the state's arguments, Van Hollen nonetheless has attempted to claim, in a statement in response to last week's temporary injuction, that Act 23 poses no significant burdens on those needing to obtain Photo IDs before being able to cast their once-legal vote.

In his ruling last week, however, Judge Flanagan referred to "forty uncontested affidavits" in which visits to state Dept. of Transportation offices revealed "delay, dysfunctional computer systems, misinformation and significant time to avoid being turned away at the ballot boxes." Last summer, The BRAD BLOG documented just one such case. Flanagan also also referred specifically to the cases of 58-year old Marine Corps Vet Ricky Tyrone Lewis and 84-year old Ruthelle Frank who couldn't obtain the required "free" state photo ID because they did not have birth certificates.

The NAACP case heard testimony and affidavits --- which all went uncontested by the state defendants --- that more than 220,000 eligible voters in the Badger State stood to find themselves unable to prove their identity under the new law.

Last month, for example, we covered the case of 77-year old Bettye Jones, an African-American, who recently moved to Brookfield, WI with her daughter. Jones, who was home-born in TN, has voted regularly since the 1950s. She possesses a valid Ohio driver's license. But she found that obtaining the required ID was not simply burdensome in WI, but impossible, due to her lack of a birth certificate.

Then there is the class action federal lawsuit as filed late last year by the ACLU in the U.S. District Court for the Eastern District of Wisconsin. That complaint describes six broad categories of otherwise eligible WI voters for whom the task of obtaining an ID was particularly burdensome, if not impossible, especially for the indigent and the disabled, with limited transportation, distant DMVs, etc.

And even when able-bodied citizens did make their way to a state Dept. of Transportation office, they found that obtaining the supposedly "free ID" proved no easy task.

Already in Wisconsin, in the first full roll out of Act 23 law last month during a small primary election, a number of previously-legal voters found themselves barred from voting at polling places where they had previously voted without incident for decades.

In short, there is simply nothing in the way of evidence to support the broad justifications the WI AG has so far advanced in support of his appeal of both rulings by Judges Flanagan and Niess.

"Affidavits have been submitted by amici curiae Wisconsin Democracy Campaign and Dane County demonstrating the very real disenfranchising effects of Act 23's photo ID requirements," Niess states in his ruling today. "They show that many constitutionally qualified electors from all walks of life will be blocked from voting at the polls by Act 23, involuntarily and occasionally through no fault of their own."

"These disenfranchised citizens would certainly include some of our friends, neighbors and relatives. Mostly they would consist of those struggling souls who, unlike the vast majority of Wisconsin voters, for whatever reason will lack the financial, physical, mental, or emotional resources to comply with Act 23, but are otherwise constitutionally entitled to vote," he writes.

"The right to vote belongs to all Wisconsin citizens who are qualified electors, not just the fortunate majority for whom Act 23 poses little obstacle at the polls."

At the end of his ruling today, Niess powerfully concludes [emphasis added]:

Without question, where it exists, voter fraud corrupts elections and undermines our form of government. The legislature and governor may certainly take aggressive action to prevent its occurrence. But voter fraud is no more poisonous to our democracy than voter suppression. Indeed, they are two heads on the same monster. A government that undermines the very foundation of its existence - the people's inherent, pre-constitutional right to vote - imperils its legitimacy as a government by the people, for the people, and especially of the people. It sows the seeds for its own demise as a democratic institution.

Related news elsewhere today...

In a related matter today, the U.S. Dept. of Justice has rejected a new polling place Photo ID restriction law passed by Texas Republicans last year. Based on evidence supply by the state, the DoJ finds that the statute discriminates against Hispanic voters who are far more likely to lack the type of state-issued Photo ID required by the new law than non-Hispanic voters. The retrogressive effect of that state's voting restriction, according to the DoJ, is in violation of Section 5 of the federal Voting Rights Act which requires some 16 different "covered jurisdictions" with a history of racial discrimination, to receive preclearance before enacting new election laws. Texas is one of those covered jurisdictions.

Wisconsin is not, however, covered by Section 5 of the Voting Rights Act. Nonetheless, The BRAD BLOG's legal analyst, Ernest A. Canning (who also contributed to this report), recently argued that it would be appropriate for the DoJ to intervene, under Section 2 of the VRA, in states like Wisconsin, and elsewhere that Republicans have passed similarly disenfranchising polling place Photo ID restrictions since coming to power in the 2010 election.

The DoJ has so far rejected or objected to similar laws under Section 5, in covered jurisdictions such as in South Carolina and in Florida, in addition to Texas. It is also examining a recent referendum passed in the state of Mississippi.

But the federal agency has, so far, failed to take action to protect voting rights in other, non-covered states where Photo ID laws have been recently enacted. In addition to Wisconsin, those states include Tennessee, Alabama, Kansas and, very soon, Pennsylvania. Political appointees in the Bush Administration's DoJ approved a polling place Photo ID restriction in the state of Georgia over the strict objections of career attorneys in the Civil Rights Division, while Indiana was able to receive approval from the U.S. Supreme Court for their law in 2008. Since then, previously-legal voters in the Hoosier State, such as nuns and students, have found themselves unable to cast their legal vote ever since.

Despite Indiana's first-in-the-nation Photo ID restriction law, the state's own top election official, Republican Sec. of State Charlie White, was recently forced to step down after being convicted of six criminal felonies, three of them related to voter fraud. The state's restrictive law has succeeded in preventing legal voters from voting, even while it has failed to deter even the Secretary of State from committing three counts of actual voter fraud.

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