[This article now cross-published by Salon...]
Just over a week ago, The BRAD BLOG's legal analyst Ernie Canning posited that the decision by a federal court in Wisconsin to strike down that state's polling place Photo ID law could signal "the beginning of the end" for such disenfranchising, Republican-enacted laws around the nation.
Since that landmark ruling in the Badger State, new signs from top elected Republican officials in Pennsylvania and Iowa, and even in Wisconsin, suggest that the (at least) decade-long GOP "voter fraud" fraud may have finally peaked, and will now begin the inevitably long slide into abandoned, historical shame.
We don't want to be too quick to declare the demise of this insidious attempt at reviving Jim Crow with a sophisticated and nefariously misleading legal patina, but after covering this beat for a decade --- long before much of the general public, much less the Democratic Party itself, seemed to notice --- it seems that the recent landmark court ruling in WI, followed by last week's towel toss in Pennsylvania and embarrassing revelations in Iowa, may be seen in the not-too-distant future as the moment that the GOP "voter fraud" fraud finally began to permanently unravel...
Wisconsin's federal 'precedent'
The decision by federal district court Judge Lynn Adelman at the end of last month, decimating both the polling place Photo ID restriction law passed by Republicans in Wisconsin along with every last one of their disingenuous claims about the law's necessity for preventing voter fraud, will be appealed to a higher court. Where Adelman found [PDF] the law in violation of both the U.S. Constitution and the federal Voting Rights Act, prohibiting laws which discriminate against certain classes of voters, some election law experts say there is a promising possibility that the conservative 7th Circuit Court of Appeals might roll back Adelman's decision, based on elements of the 2008 Crawford vs. Marion County, IN ruling by the U.S. Supreme Court.
As Canning detailed, however, if the 7th Circuit (and perhaps, eventually, the U.S. Supreme Court itself) follow the guidance offered by the Court's majority during the 2008 case --- which is often wildly and knowingly misinterpreted by blatantly partisan "voter fraud" fraudsters and other disingenuous proponents of Republican Photo ID laws --- they may have a difficult time coming up with justification to overturn Adelman's decision and re-instate WI's law. After a full trial on the merits and several months of deliberation, Adelman found it "absolutely clear" that the restrictions imposed by Republicans in the Badger State would "prevent more legitimate votes from being cast than fraudulent votes."
So thorough was the federal judge's 90-page dismantling of the GOP law and its supposed justifications, Republican Gov. Scott Walker --- who, just weeks earlier, had announced that he might call a special session of the state legislature to tweak the law after two different state courts had struck it down as a violation of the state's Constitution --- had to concede that it couldn't be fixed in time for his own 2014 re-election bid.
After previously describing such a legislative fix as the only issue "pressing" enough to justify convening a special session before the November election, Walker admitted, after the federal decision came down, that he "didn't see any evidence to suggest that Judge Adelman gave any suggestion that this could be upheld if a tweak was made here or there."
Indeed, in his ruling, Adelman stated in no uncertain terms that, "given the evidence presented at trial showing that Blacks and Latinos are more likely than whites to lack an ID, it is difficult to see how an amendment to the photo ID requirement could remove its disproportionate racial impact and discriminatory result."
"The decision from Adelman was basically just an outright opposition to the concept," Walker conceded. "This was just basically a full-out rejection of the position."
For now then, Walker's hopes, and those of his similarly-partisan Attorney General J.B. Van Hollen, rest only on their beliefs that the conservative-leaning 7th Circuit or, if not, the U.S. Supreme Court, will ignore the directive in the SCOTUS Crawford ruling to find the WI statute Constitutional and not in violation of the federal Voting Rights Act.
Given this particular Supreme Court's proclivity for simply making stuff up as they go along in order to comport with their radical Rightwing activist beliefs (even where such rulings bely their own claims of strict constructionist conservatism), we'll not put it beyond them to ignore their own rulings from just 6 years ago, in order to find in favor of blatant Republican voter suppression.
Still, if the higher federal courts instead choose to follow SCOTUS' own precedent, as detailed by the meticulous findings of Adelman, not only is the WI law likely to find itself in the dustbin of history, but that same fate could await the almost identical GOP voting restrictions currently being challenged at the federal level in Texas, in North Carolina and in Arkansas. In fact, the U.S. Dept of Justice, one of the plaintiffs in the federal case against the TX law, has now amended their complaint [PDF] to include Judge Adelman's WI decision in full.
Pennsylvania's towel toss
The federal judge in the WI case found that "defendants could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past." Those following the facts of the GOP Photo ID scam, rather than Fox "News", could have told you that long ago.
In 2012, there was much ado as Republicans in control of the state legislature worked with the Republican Governor and the Secretary of the Commonwealth to enact a Photo ID restriction law in advance of that year's Presidential Election. While state Republicans, as usual, claimed the new restrictions were needed to fight voter fraud, once the case made its way to court, the state was forced to admit in a formal pre-trial stipulation, that "[t]here have been no investigations or prosecutions of in-person voter fraud in Pennsylvania," that they were "not aware of any incidents of in-person voter fraud in Pennsylvania and do not have direct personal knowledge of in-person voter fraud elsewhere."
"Respondents will not offer any evidence in this action that in-person voter fraud has in fact occurred in Pennsylvania or elsewhere," they conceded, along with the admission that they would "not offer any evidence or argument that in person voter fraud is likely to occur in November 2012 in the absence of the Photo ID law," during the trial.
In other words, before the trial even began, the state was forced to admit that the only type of voter fraud that could possibly be deterred by their own Photo ID restrictions had never actually happened, to their knowledge, and wasn't likely to happen in the future. That, even as PA's Republican House Leader Mike Turzai appeared to let slip the real reason they had passed the new law. "Voter ID," he boasted at a Republican State Committee meeting, "is gonna allow Governor Romney to win the state of Pennsylvania."
The law, challenged in state court as a violation of the Pennsylvania Constitution's fundamental right to vote, was temporarily blocked by a state judge that year, until a full trial could be held on the merits.
In January of this year, Judge Bernard L. McGinley of the Commonwealth Court of Pennsylvania ruled, just as The BRAD BLOG's Canning had predicted back in 2012, that several sections of the GOP law, including the polling place Photo ID restrictions, were in violation of the Keystone State's constitution, after finding that "hundreds of thousands" of otherwise legal voters were at risk of being disenfranchised for "no compelling state interest". That was essentially the same thing Judge Adelman would later find in the federal WI case.
While the WI decision faces appeals (in both the state and federal court cases), PA's Republican Gov. Tom Corbett decided on Thursday to toss in the towel. He said he would not appeal McGinley's decision that the law represented a violation of the state's fundamental right to vote.
Like Walker, Corbett, who also faces his own tough re-election contest this year, still claims to believe that such laws are perfectly constitutional, even though the courts continually find otherwise. Unlike Walker, however, Corbett is choosing to not expend any more Big Government funds in the hopes of keeping perfectly legal, largely Democratic-leaning voters from being able to cast their votes this year. He has decided, for now, to abandon the restrictions on voting that are neither necessary, nor even effective at deterring voter fraud (which, where it exists, is almost exclusively carried out via absentee voting, rather than in-person, voter impersonation at the polling place).
Pennsylvania's law had already cost the supposed "conservatives" in the state some $6 million to advertise, and another million for outside legal counsel in their fruitless, now-abandoned attempt to defend the law.
While the federal and state courts in WI and the state court in PA all recently struck down GOP polling place Photo ID restrictions as violations of law and Constitution (the same was found by an Arkansas state court late last month as well, where a federal case is now also pending), each court also eviscerated the purported justifications for such laws, after Republican defendants were unable to present any evidence of the crime they were pretending the laws were intended to prevent.
Meanwhile, in Iowa, where that state's Republican Photo ID restriction law has so far been blocked by Democrats, Republican Sec. of State Matt Schultz was, nonetheless, spending Big Government money to crack down on the massive voter fraud he was certain --- absolutely certain --- has been proliferating in the Hawkeye State.
Sadly, as has been shown to be the case everywhere else, it ain't happening in Iowa either, as Schultz himself has now discovered, even if he's having trouble coming to terms with those facts.
On Friday, the Sec. of State released the long-awaited results of his two-year, $250,000 investigation into Iowa voter fraud. Iowa's Division of Criminal Investigation (DCI), commissioned by Schultz to carry out the probe, was able to find just 117 cases of illegal voting in the last two years.
Out of more than 1.5 million votes cast in the 2012 general election alone, the allegedly illegal votes cast in the state amount to an infinitesimal 0.008427933%. Still, even that number overstates the incidences of voter fraud Schultz was able to find in Iowa, which happens to include zero cases of in-person voter impersonation that Photo ID laws are supposedly meant to deter. Zero.
Schultz' attempted purge was similar to the failed attempt by Florida, just before the 2012 Presidential election, to purge vast numbers of voters from the rolls, based on speculative information and a hope to compare registration rolls against bad information from a federal database. Also like Florida, where initially 182,000 voters were identified by the Republican Sec. of State there as non-citizens illegally registered to vote, almost none of the thousands of registered voters originally identified by Schultz were actually found to have violated the law.
Schultz' 3,582 non-citizen voters were narrowed to just 147 potential cases by the DCI. Of those, only a handful are being charged with violations of law. Out of those cases, and another handful of former felons and a few voters who may have voted in other states as well, just 27 voters were charged with voter fraud crimes --- none for voter impersonation.
So far, according to AP, six have pleaded guilty, one was found not guilty by a jury (in just 40 minutes, after it became clear the former felon "believed her right to vote had been restored when she left probation last year," following a 2008 conviction), another received deferred prosecution and 15 cases are still pending. Again, none of those cases are for the crime that Photo ID is meant to deter.
Schultz, who is now running for Congress, has long claimed a rampant epidemic of voter fraud in Iowa, ever since taking office the Sec. of State's office in 2010. Yet he has come up with virtually nothing, despite last year telling a "Tea Party" conference that without Photo ID restrictions, nothing else mattered.
"There are a whole lot of issues that we care about, abortion, gay marriage, a whole lot of social issues that we care deeply about. But you have to start caring about voter ID," he told the crowd at the April 2013 gathering. "Because if you don’t have that, you’ll never be able to make a difference in any other issue you care about. Never. Because they will cheat! They’ll cheat. And we need to make sure we stop them. So what do I need you to do? I need you start telling your friends and neighbors that you love voter ID. You love voter ID."
Well, apparently Iowans don't love such laws. A Des Moines Register poll taken in March of this year found that, by a 46-point margin, voters believe it's more important that "every eligible registered voter has the opportunity to vote" than it is to make sure that "no person ineligible to vote slips through the cracks and casts a vote." As Ian Millhiser noted at the time, 71% of Iowans preferred the first option, while just 25% percent chose the latter.
But it's not only the general public in Iowa which prefers free access to the polls for all, rather than unnecessary restrictions that might disenfranchise thousands of perfectly legal voters. Republicans themselves, clearly, feel the same! Including Matt Schultz and the Republican Party which held the Iowa 2012 GOP Presidential caucuses without requiring voters to present Photo ID before voting.
That's right: when the Republican Party had the opportunity to set any rules for their own elections --- without being burdened by Democrats, the courts, the laws or those pesky Constitutional values --- they chose to not require that their own voters present Photo ID before participating, even after the party had worked very hard in the year prior to require such restrictions for all voters in the 2012 general election. (For the record, the Iowa GOP also chose to use hand-counted paper ballots rather than optical-scan or touch-screen computers in their Presidential caucuses that year as well. Thanks only to that public oversight of the balloting the real winner of the 2012 Iowa GOP Caucus was eventually determined.)
"There are people who voted who weren't supposed to," Schultz stated after the release of his underwhelming report on Iowa voter fraud. "And this is a situation where we tried to do something about it. I think it was the right thing to do and I stand by that."
Peak GOP "Voter Fraud" Fraud
While prosecuting criminal voter fraud is indeed important --- no matter how small the amount --- the utter failure to cite any evidence of voter fraud at the polls that might be deterred by Photo ID restrictions has perhaps hit a tipping point. In case after case, at both the state and federal level, repeated findings by courts that far more votes stand to be blocked than illegal ones prevented seems to be reaching a critical mass. It's reasonable to expect that Judge Adelman's findings in WI will resonate in the federal cases now pending against TX, NC and AR.
Republican dead-enders will, no doubt, continue to make fraudulent, evidence-free claims about an "epidemic of Democratic voter fraud" just as they have since the days following the 2004 Presidential election when a little-noticed group of George W. Bush's Republican operatives kicked off what has now been a decade of the polling place Photo ID "voter fraud" scam. (The BRAD BLOG noticed the well-funded, well-coordinated effort at the time, though it took some years for others to fully appreciate Republicans' insidious plans for this well-planned, direct assault on voting rights.)
There are, indeed, states where similar Republican laws are in place or moving forward, and the Supreme Court can, once again, blow everything up with a stroke of their partisan, activist pens. But the chances now seem almost as good that we may finally be looking at a future where the mask has fallen away on such schemes, where they are being found --- by the courts, the media, the people, and even the elected officials who ran on phony "voter fraud" claims --- to be little more than the blatant voter suppression schemes they were always designed to be.
As conservative demi-god Paul Weyrich, founder of the American Legislative Exchange Counsel (ALEC), the Rightwing organization pushing these laws in state legislatures for years, declared at a convention of Evangelical Republicans in 1984: "I don't want everybody to vote. Elections are not won by a majority of people, they never have been from the beginning of our country and they are not now. As a matter of fact, our leverage in the elections quite candidly goes up as the voting populace goes down."
After a decade-long attempt at keeping the voting populace down, Republicans may have to move on to tactics other than polling place Photo ID laws, at least if the last several weeks have been any indication. While it's far too early to know for certain, history may eventually look back to early 2014 as the moment when the entire GOP "voter fraud" fraud finally began to fall apart.