The Wisconsin Supreme Court’s politically motivated decision on voter ID

The Wisconsin Supreme Court is composed of seven justices who are elected in state-wide “non-partisan” elections. (Riiight). Each justice is elected for a ten-year term, and only one justice may be elected in any year.

You will recall that the 2011 Wisconsin Supreme Court election between incumbent David Prosser, Jr. and challenger Assistant Attorney General JoAnne Kloppenburg gained significant nationwide publicity, and was widely seen as a referendum on Governor Scott Walker’s proposed budget reforms in Wisconsin, and a part of the 2011 Wisconsin union protests. Wisconsin Supreme Court election, 2011 – Wikipedia.

The Wisconsin Supreme Court in the NAACP case, and the LWV case, on a 4-3 vote (and 5-2 vote in the second case), rejected two challenges to the state’s voter ID law on Thursday.

Rick Hasen reported, Breaking: Divided WI Supreme Court Upholds Voter ID Law; Federal Ban Still in Effect:

The federal ban on the law under the U.S. Constitution and Section 2 of the Voting Rights Act remains in effect.

You can read the opinions here and here.

Many had thought the Wisconsin court would strike down the law following questions at oral argument, and there was talk at one point of a special session to revise the law to deal with objections. That talk went away with the federal ruling in Frank v. Walker.  That case is now pending at the 7th Circuit and the opinion will be important and likely influential, being the first appellate case to deal with the Section 2 issue [re: voter ID].

Talking Points Memo reported that the only alleged case of “voter fraud” cited by the Court as justification for voter ID was a supporter of Governor Scott Walker, and it does not appear that ANY of the alleged 13 counts of voter fraud that Mr. Monroe was charged with would have been stopped by a voter ID requirement. Scott Walker Supporter Charged With Major Voter Fraud Claims Amnesia.

Worse, Rick Hasen notes that “the Monroe prosecution is happening after the lower court ruling, and was not in evidence before the lower court. I believe it has become increasingly common for appellate courts to cite matters not in the record which the judges or their clerks find from a little googling.”

This is improper — appellate cases are limited to the evidence in the record. This Court went outside of the evidence looking for something, anything, with which to support its opinion.

On the political motivations of this Wisconsin Supreme Court decision, Josh Douglas, the Robert G. Lawson & William H. Fortune Associate Professor of Law at the University of Kentucky College of Law who specializes in election law, writes at the Milwaukee Journal Sentinel, Hypocrisy on Wisconsin Supreme Court: Why voter ID decision is wrong:

The Wisconsin Supreme Court on Thursday issued two decisions that had the effect of upholding the state’s strict voter ID requirement. Crucial to the court’s decisions was its finding that, once it modified a different rule, the voter ID law did not impose too substantial of a burden on qualified voters who do not otherwise have the necessary identification.

The split decisions entail both breathtaking judicial activism and ignorance regarding the difference between the federal and state constitutions.

First, the conservative-leaning majority found that the voter ID law imposed a severe burden on voters because it would cost money for voters to gather the underlying documentation they might need — such as a birth certificate — to obtain the “free” voter ID. But the majority then forges ahead to adopt a “saving construction” of a state administrative rule to conclude that the law does not, really, require voters to pay money to obtain the documentation. It rewrites the administrative rule so that the voter ID law does not become an unconstitutional poll tax.

To justify this maneuver, the court cites a U.S. Supreme Court decision that states “where a saving construction is ‘fairly possible,’ the court will adopt it.” But that U.S. Supreme Court case said no such thing; it instead noted that if a saving construction of the very statute at issue is possible, then the court should avoid the constitutional question and decide the case under that statutory ground.

Here, by contrast, there was no “fairly possible” construction of the voter ID law. Instead, the court requires state administrators to invoke their “discretion” under a separate administrative regulation — one that was not at issue in the case — to give voter IDs to voters who must pay money to obtain the underlying documentation.

Second, the court conflated the U.S. and Wisconsin constitutions to uphold the law. The plaintiffs challenged the law under the Wisconsin constitution provision that provides, “Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district.” The plaintiff’s argument, in essence, was that the burdens associated with obtaining the required voter ID took away the constitutionally granted right to vote for some citizens.

The U.S. Constitution has no similar grant of the right to vote. Yet the Wisconsin Supreme Court invoked U.S. Supreme Court decisions under the federal Equal Protection Clause to decide that the Wisconsin voter ID law did not violate the Wisconsin constitution.

Burdens on the right to vote for federal equal protection principles, however, are not the same as burdens on an explicitly conferred right to vote under the state constitution. When assessing burdens under the U.S. Supreme Court’s voting rights jurisprudence, the question is whether a law disproportionately deprives a certain category of people from voting. Put differently, the polestar under the U.S. Constitution is equality.

Under state constitutions, which all explicitly grant the right to vote to the state’s citizens, the question should be whether the law impermissibly takes away voting rights at all — which is separate from equality principles. By “lockstepping” the state constitution with the U.S. Constitution, then, the Wisconsin Supreme Court devalued its own constitution’s grant of the right to vote.

Compounding this failure, the Wisconsin Supreme Court exhibited sheer hypocrisy when it chastised a federal district court for supposedly applying this federal jurisprudence incorrectly when that court struck down Wisconsin’s voter ID law. In a footnote, the Wisconsin Supreme Court claimed that the federal court “stands the (U.S. Supreme Court’s jurisprudence on the right to vote) on its head.” But it’s not the job of a state court to question a federal court’s analysis on a federal issue.

Instead, the Wisconsin Supreme Court should have faithfully analyzed the issue actually before it: whether the law is too burdensome based on the more expansive grant of voting rights in the Wisconsin Constitution. The Wisconsin Supreme Court exhibited further hypocrisy in faulting the federal district court for even hearing the case while it was pending before the state courts — suggesting that the federal court was being too active — when its own analysis was itself a model of judicial activism.

In the end, the Wisconsin Supreme Court’s decisions are poorly reasoned because they overreach in trying to “save” the statute and fail to apply the Wisconsin constitution separately from the U.S. Constitution. Unsurprisingly, the court split along ideological lines, with the conservative justices in the majority. Indeed, virtually all state court decisions on voter ID fall along partisan lines. This is unfortunate.

If courts would recognize the fact that state constitutions explicitly grant the right to vote to state citizens, they would view voting rights more broadly and attempts to curtail that right more suspiciously. This is not to say that all voter ID laws are inherently unconstitutional. But to uphold the law, a court should find that it does not infringe the constitutionally guaranteed right to vote that state constitutions explicitly confer, without overreaching to save the statute.

The Wisconsin Supreme Court decisions failed in that regard.

Well said. The courts have been corrupted by judicial activism.