“The Fundamental Right To Vote”: Second Judge Strikes Down Wisconsin’s ALEC-Inspired Voter ID Law
A Dane County judge has declared Wisconsin’s American Legislative Exchange Council-inspired voter ID law unconstitutional, making him the second judge in one week to block the law’s unnecessary burdens on the right to vote.
“The people’s fundamental right of suffrage preceded and gave birth to our Constitution,” wrote Dane County District Judge Richard Niess, “not the other way around.”
The judge rebuffed assertions by Governor Scott Walker and legislative Republicans that they possessed the authority to impose new burdens on voting. “[D]efendants’ argument that the fundamental right to vote must yield to legislative fiat turns our constitutional scheme of democratic government squarely on its head,” he wrote.
“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.”
The case was brought by the League of Women Voters and tried by the law firm Cullen, Weston, Pines & Bach.
Judge Niess’ decision comes less than a week after a Wisconsin State Court judge temporarily enjoined the same voter ID law — Act 23 — on grounds it likely violated the state constitution, but only until that court could hear a full trial. Niess’ decision, also decided under the Wisconsin Constitution, permanently invalidates the law. Governor Walker’s Department of Justice says they will quickly appeal the decision.
Voting Protected by Wisconsin Constitution
Article III, Section 1 of the Wisconsin Constitution provides that all state residents who are U.S. citizens and over age 18 may vote, and Section 2, according to the decision, “authorizes the government to exclude from voting those otherwise-eligible electors (1) who have been convicted of a felony and whose civil rights have not been restored, or (2) those adjudged by a court to be incompetent or partially incompetent, unless the judgment contains certain specifications.”
According to Judge Niess, Section 1 and 2 provide the exclusive basis for creating laws that implement the constitutional requirements for voting. “The government may not disqualify an elector who possesses those qualifications on the grounds that the voter does not satisfy additional statutorily created qualifications not contained in Article III, such as a photo ID,” he wrote.
“By enacting Act 23’s photo ID requirements as a precondition to voting, the legislature and governor have exceeded their constitutional authority.”
Wisconsin passed Act 23 in May on a contentious, party-line vote. Four lawsuits challenging the law have since been filed. Wisconsin Republicans assert that the law should be upheld because the U.S. Supreme Court decided in 2008 that Indiana’s relatively similar voter ID law did not violate the U.S. Constitution. However, two of the four lawsuits are challenging Act 23 under the Wisconsin Constitution, which unlike the U.S. Constitution expressly protects the right to vote. Wisconsin’s voter ID law is also more strict than Indiana’s, and evidence indicates it will place more burdens on a greater number of people.
Voter ID’s ALEC Roots
Wisconsin’s voter ID law bears many elements of the ALEC model Voter ID Act. ALEC began to focus on voter ID shortly after the highest general election turnout in nearly 60 years swept America’s first black president into office with strong support from college students and African-Americans. Soon after the 2008 elections, “Preventing Election Fraud” was the cover story on the Inside ALEC magazine, and ALEC corporations and politicians voted in 2009 for “model” voter ID legislation.
Around 34 voter ID bills modeled after the ALEC template were introduced in 2011. Those bills have been coming under increasing scrutiny in recent months.
Judge Niess’ decision came on the same day that the U.S. Department of Justice blocked Texas’ ALEC-inspired voter ID law on grounds it would suppress the Latino vote. Last December, the D.O.J. blocked South Carolina’s voter ID bill as discriminatory against people of color. Texas and South Carolina are two of several states with a history of discrimination requiring federal pre-clearance for changes to voting laws or procedures under the 1965 Voting Rights Act. Wisconsin is not subject to pre-clearance.
“The right to vote belongs to all Wisconsin citizens”
While last week’s state court decision by Judge David Flanagan focused on how the voter ID law “is addressed to a problem which is very limited” and “fails to account for the difficulty its demands impose upon indigent, elderly and disabled citizens,” Judge Niess issued his decision based solely on the legislature’s constitutional authority to regulate voting. “It is not necessary to consider the human cost of photo ID requirements in order to expose their constitutional deficiencies,” he wrote. “They are unconstitutional on their face.
But, Judge Niess wrote, “there is no harm in pausing to reflect on the insurmountable burdens facing many of our fellow constitutionally qualified electors should Act 23 hold sway.”
“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.”
While noting that “where it exists, voter fraud corrupts elections and undermines our form of government,” Niess stated that “voter fraud is no more poisonous to our democracy than voter suppression. Indeed, they are two heads on the same monster.”
Niess wrote:
“Where does the Wisconsin Constitution say that the government we, the people, created can simply cast aside the inherent suffrage rights of any qualified elector on the wish and promise – even the guarantee – that doing so serves to prevent some unqualified individuals from voting?
It doesn’t. In fact, it unequivocally says the opposite. 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.”
By: Brendan Fischer, Center for Media and Democracy, March 13, 2012
“A Foiled Power Grab”: Voter ID Laws Face Major Roadblocks
Texas Republicans have been trying for years to pass a law that would require state voters to show identification before hitting the polls—and state Democrats have been equally determined to stop such a measure. The Rs came close in 2009, but the House Democrats, only two seats away from a majority, blew up the legislative session rather than see the measure pass. By 2011, however, fresh from Tea Party victories, the GOP had overwhelming majorities in both Houses. The bill was almost undoubtedly going to pass, and rather than go for a more moderate version of voter ID with non-photo options, the conservatives went for the gold, introducing one of the most stringent versions of a voter ID requirement. The only option left for the Democrats was to set up the grounds for the legal battles sure to come.
Monday, it looks like those efforts paid off. The Department of Justice has blocked the law, meaning that while the measure goes to the United States District Court for the District of Columbia, the Lone Star State won’t be allowed to enforce the measure. Not every state must seek permission before changing election law, a process known as preclearance. The entire reason Texas must preclear changes to its election law stems from the state’s history of civil rights abuses. 50 years after the Voting Rights Act was passed, it seems the feds are right to keep their guard up.
Of the many problems the DOJ outlines in its letter to the state, one major point came up repeatedly during the legislative debate on the subject: the plight of rural voters. Democratic senators hit hard on the problem of access to state drivers’ license offices; in the letter, the DOJ notes 81 of the state’s 254 counties lack operational drivers’ license offices. The DOJ also notes that in rural areas the gap between Hispanics and non-Hispanics who have the necessary ID is “particularly stark in counties without driver’s license offices.” The senators were also vehement in discussing the hardships low-income voters would face both in terms of logistics and in terms of monetary costs. The DOJ finds that someone lacking the necessary documents to get an ID would have to start by obtaining a birth certificate—at minimum $22.
The question, not surprisingly, stems from whether Hispanic voters will be disproportionately affected by the new hurdles. The DOJ is fairly damning here, looking separately at two data sets provided by the state, one from September 2011 and one from January 2012. The state failed to explain discrepancies between the two sets of data, but more importantly, the two sets both show similar trends. Latino residents are significantly less likely to have the identification necessary for voting. Furthermore, the letter notes that the state has done almost nothing to educate voters about the coming change: “The state has indicated that it will implement a new educational program;” the letter reads, “but as of this date, our information indicates that the currently proposed plan will incorporate the new identification requirement into a general voter-education program.”
The state attorney general has already filed a preemptive lawsuit, so the next step is the D.C. Courts. But in the meantime, the law can’t go into effect—a legal win for the minority rights groups and Democrats fighting against the state. It’s not the only victory. As the DOJ issued its letter, a second judge in Wisconsin has blocked the state’s measure to require idenfication. Back in December, the Obama administration nixed a similar proposal from South Carolina.
To me, the partisan quality of the debate stains almost everything. Last week, I wrote about Connecticut’s efforts to increase voter turnout—a rare example in the midst of efforts to make voter more difficult. I’ll say now what I said then. These measures have obvious partisan consequences—and voter ID would help Republicans and hurt Democrats in political races. It’s obvious that concern for power is motivating many of the actors in the debate.
But voting is a holy act in democratic governments. It’s a powerful right, one people have struggled and died to exercise, and only relatively recently have minority communities had the necessary legal protections to get to the ballot box. The fact that the DOJ’s decision may benefit one political party is hardly worth mentioning when one considers that it also benefits basic rights of citizens.
By: Abby Rapoport, The American Prospect, March 12, 2012
“Making Exceptions To The Right To Vote”: Bad News For Voting Rights In Swing States
Pennsylvania is a large, crucial swing state that leans a bit more Democratic than its neighbor Ohio. President Obama must win Pennsylvania if he is to retain the White House. That’s about to become more difficult.
Republicans in Pennsylvania’s state Senate passed a bill Wednesday—on a mostly party-line vote—to require that voters show photo identification in order to vote. Governor Tom Corbett, a Republican, supports the bill and will sign it into law once the Republican-controlled state House of Representatives passes it. Voter identification laws disenfranchise those without a photo ID. Multiple studies have shown that people without IDs are more likely to belong to a Democratic-leaning constituency, such as low-income, minority or young voters. It can also fall especially hard on people with disabilities and the elderly. That’s why Democrats oppose such a law. And as the Associated Press reports, “Counties, civil liberties advocates, labor unions, the AARP and National Association for the Advancement of Colored People also objected to the bill.”
The AP also notes, “The County Commissioners Association of Pennsylvania has warned lawmakers that adding the additional step of requiring poll workers to check photo IDs will create longer Election Day lines at polling places.” Long lines at polling booths can cause people to give up and go home. That happened in many Ohio polling places in 2004. Some experts, such as Mark Crispin Miller of New York University, argue that those problems in Ohio may have thrown the election to President Bush.
The Pennsylvania bill is actually more moderate than many of its progenitors in states such as Georgia. Valid identification includes a student ID card from a Pennsylvania college or university, identification from a personal care home or employee cards for county or municipal workers. Voters without identification will be able to cast provisional ballots. However, they would then have to return within six days to prove their eligibility. Such an onerous burden will often go unmet, meaning votes will be thrown out.
Pennsylvania would become the third-largest state, after Texas and Florida, to require voters to produce photo identification. Florida is another large, important swing state. Voting rights have long been a contentious issue in Florida. Many Democrats and civil rights leaders believe that Governor Jeb Bush’s administration allowed George W. Bush to beat Al Gore in Florida in 2000 by ordering a purge of the names of felons from voting rolls. Such purges often ensnare legitimate voters with the same names and prevent them from voting. Thanks to the War on Drugs, felons in Florida are disproportionately black and Latino, as are people with the misfortune to share their names.
African-American Democratic state senators in Florida are trying to find ways to expand opportunities for citizens to vote, but Republicans are stymieing them. As the Miami Herald reported on Wednesday:
Deciding that the proposal was off topic, Senate leaders refused to allow African-American senators to tag a proposal expanding early voting onto voter identification legislation.
Sen. Chris Smith, D-Ft. Lauderdale, filed an amendment to HB 1461 that would have given counties the option of opening early voting locations on the Sunday before an election day. Last year, the Legislature approved sweeping new election law that, among other things, limited early voting hours and prohibited early voting within 72 hours of an election.
Don’t worry, though, that Florida Senate Republicans have abandoned civil rights altogether. They made sure to amend the bill to prevent voting clerks from scanning the photo IDs they require voters to show. As the Herald reports:
Senators approved a different amendment sponsored by Sen. Joe Negron, R-Stuart. That proposal allows voters to opt out of having their driver licenses scanned at the polls.
The state’s supervisors of elections requested the option of scanning licenses, saying it will expedite the registration process during high-turnout election days. But Negron said civil liberties were at stake and people should be allowed to vote without potentially giving poll workers access to private information.
“This is the defining moment of the Libertarian caucus of the Senate,” Negron said while urging senators to approve his amendment.
It passed on a voice vote, eliciting cheers from conservative senators.
“Freedom,” Sen. Don Gaetz, R-Niceville, shouted after the vote while pumping his fists in the air.
This is a twofer for Republicans: they get to pose as defenders of small government, while ensuring long lines thanks to the ID requirement. Tea Party Republicans say they support civil liberties, but they make a big exception for the right to vote.
By: Ben Adler, The Nation, March 8, 2012
“Crazy Idea”: Laws To Encourage Voting
Connecticut has taken the lead in proposing measures to increase voter turnout by—get this—making it easier to vote.
Voter ID laws have been all the rage around the country, with conservative lawmakers pushing to make it harder to vote, often by requiring some form of government-issued photo identification. The goal, at least according to rhetoric, is to keep the process safe from fraud—despite there being no real evidence of in-person voter fraud, the only kind such laws would actually prevent. In the meantime, states struggle with low-turnout rates and sometimes low registration rates. In Texas, which recently passed one of the more stringent ID requirements, residents vote at among the lowest rates in the country.
All of which makes Connecticut’s current voting debate somewhat shocking by comparison. The secretary of state has taken the lead in proposing measures to increase voter turnout by—get this—making it easier to vote. Two proposals make it easier to register by offering same-day registration for those who show up on Election Day and creating an online voter registration system so people can do it from home. Another measure would increase penalties for voter intimidation. According to officials, the efforts are much-needed to increase turnout. As the Hartford Courant reports:
“It’s long past time that we move our elections into the 21st century in Connecticut,” Secretary of the State Denise Merrill said during a press briefing Friday prior to a legislative hearing on the proposals. “We are not on the cutting edge and our system is old, costly and inconvenient.”
As a result, Merrill said, one out of three state residents who are eligible to vote aren’t even registered.
Voting, most of us can all agree, is a good thing to do. But legislation around voting has become largely about partisan advantage—voter ID laws are seen to give Republicans an advantage because the impact would be particularly felt in poor and minority communities, both largely Democratic constituencies. Not shockingly, the Minneapolis Star-Tribune reports that the American Legislative Exchange Council, a meeting place for corporate interests and conservative lawmakers, has helped bolster the efforts to pass voter ID laws around the country—presumably because ALEC hopes to see more conservatives get into office. Meanwhile Democrats argue voter ID laws decrease access and function like a poll tax, as a way of making it harder for certain communities to vote.
The Courant article shows the same cynicism comes at efforts to increase voting—since those efforts will likely benefit Democrats. One Republican asks why there’s a need for these laws and worries about devaluing the ballot box if access is too easy. Politicians are rarely angels, and it’s likely both sides take an interest at least in part because they hope for political gain.
But that’s largely beside the point. American citizens, regardless of political affiliation, have the right to vote. Increasing access to that right is important; in the secular religion of democracy, voting is practically a holy act. While the efforts to increase turnout in Connecticut may benefit Democrats, that doesn’t change that it benefits the democratic process as well.
By: Abby Rapoport, The American Prospect, March 6, 2012
Republican Indiana Secretary Of State Convicted Of Voter Fraud
Though President Ronald Reagan called the right to vote the “crown jewel of American liberties,” many Republicans around the country have begun demanding increased voting restrictions in the name of fighting “voter fraud.” Though actual cases of voting fraud are so rare that a voter is much more likely to be struck by lightningthan to commit fraud at the polls, one Republican official in Indiana has proved that lightning can strike himself.
Yesterday, a jury found Indiana Secretary of State Charlie White (R) guilty on six felony counts of voter fraud, theft, and perjury. The conviction cost White his job, though he plans to ask the judge to reduce the charges to misdemeanors and hopes to perhaps regain the position.
In a statement, Gov. Mitch Daniels (R) announced White’s deputy will take over on an interim basis:
I have chosen not to make a permanent appointment today out of respect for the judge’s authority to lessen the verdict to a misdemeanor and reinstate the elected office holder… If the felony convictions are not altered, I anticipate making a permanent appointment quickly.
But a second court case could ultimately give the job to Democrat Vop Osili, who lost to White in November 2010. A judge’s December 2011 ruling — currently on hold, pending appeal — held that due to the voter fraud charges, White’s election was invalid. Should that ruling survive the appeals process, Osili would assume the office.
Ironically, White’s now-removed 2010 campaign website listed election integrity as among his top concerns, and promised he would “protect and defend Indiana’s Voter ID law to ensure our elections are fair and protect the most basic and precious right and responsibility of our democracy-voting.”
By: Josh Israel, Think Progress, February 4, 2012
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