Rulings could have major impact on looming recall elections...

Ernest A. Canning Byon 3/17/2012, 6:05am PT

Guest blogged by Ernest A. Canning

On Friday, an intermediate Wisconsin appellate court denied a request made by WI Attorney General J.B. Van Hollen (R), on behalf of Gov. Scott Walker's administration, to stay an order issued earlier this month by a Dane County Circuit Court that temporarily suspended the state GOP's polling place Photo ID law.

In Milwaukee Branch of the NAACP v. Walker --- the first of two cases within the past two weeks to result in an injunction on the voting restrictions, known as "Act 23," enacted by a Republican-majority last year --- Judge David Flanagan temporarily enjoined [PDF] enforcement of the law on the grounds that it was in violation of the WI Constitution's guaranteed right to vote.

As of now, that injunction will still stand. In the bargain, local election officials are now seeking to comply with Judge Flanagan's order, so that Photo ID will not be required at the polls in the statewide April primary elections, upcoming recall elections scheduled for May and June, or for the 2012 general election this November.

Unless the denial of a stay is promptly reversed by the partisan Republican majority on the WI Supreme Court, the ruling could have an immediate adverse impact on the ability of the state's controversial Governor, Lt. Gov. Rebecca Kleefisch and the Republican state Senators facing upcoming recall elections to retain office...

In the second case to result in an injunction, Dane County Circuit Court Judge Richard Niess found, in League of Women Voters v. Walker on Monday, that "The right to vote belongs to all Wisconsin citizens who are qualified electors, not just the fortunate majority from whom Act 23 poses little obstacle at the polls."

Judge Niess, in granting his permanent injunction less than a week after the Flanagan decision, similarly ruled that the polling place Photo ID restrictions were in violation of the state Constitution. The difference in the two decisions was that Judge Niess ruled that Act 23 was unconstitutional "on its face" --- that Wisconsin's Republican Governor and GOP-controlled Legislature impermissibly sought to "eliminate the right of suffrage altogether for certain constitutionally qualified voters."

Judge Flanagan, on the other hand, applied classic Equal Protection analysis based on "uncontested" evidence and testimony submitted to the court, demonstrating that the Photo ID law has a disparate impact on minorities, the poor, handicapped, and the elderly and that obtaining photo IDs, for many, is unduly burdensome.

His decision also determined that the Photo ID restriction was not rationally related to a legitimate government interest (let alone narrowly tailored to achieve a compelling governmental interest --- the higher scrutiny mandated when dealing with a fundamental right), given the absence of evidence of in-person voter fraud. In-person voter impersonation is the the only type of voter fraud which can be prevented by polling place photo ID laws.

Judge Flanagan's findings are also consistent with expert testimony presented at last September's U.S. Senate hearings (which we covered here and here) on the spate of GOP voter suppression laws being enacted around the nation.

Study after study has shown that Democratic-leaning voters are most likely to be disproportionately affected by Photo ID restrictions and other voter suppression laws.

Consider the words of Paul Weyrich, a co-founder of ALEC, the billionaire-funded organization that has drafted the models for voter suppressing photo ID laws.

"I don't want everybody to vote," Weyrich admitted while addressing a right-wing Christian audience in 1980 (see haunting video at right). "Our leverage in the elections goes up as the voting populace goes down," he added after denigrating those who seek "good government" through maximum, informed voter participation, as people who suffer from what he described as "goo goo syndrome."

One suspects that a majority of voters in Wisconsin just might prefer "good government" and "democracy" to what they now have, but we may learn for certain in the next several months as historic recall elections finally get under way.

State Attorney General Van Hollen had vowed to appeal both Judge Flanagan's and Judge Niess' injunctions. Friday's decision does not bode well for those appeals.

Act 23 was passed by the Republican majorities in both the state Senate and Assembly and was signed by Scott Walker last year. On Friday, however, the majority control previously enjoyed by Republicans in the state Senate following the wave election of 2010, had disappeared when state Senator Pam Galloway abruptly resigned, citing family health issues.

Galloway was one of four GOP state Senators set for the upcoming recall elections.

Following last year's round of recalls, the Republicans' 19-14 majority in the upper chamber had been trimmed to just 17-16. Friday's resignation of Galloway now leaves the Senate under a 16-16 power share, pending the recall elections now scheduled to begin in May.

Barring a reversal by the state Supreme Court of Friday's Appellate Court decision, all legally registered voters in the Badger State will now be able to participate in those recall elections should they choose to do so.

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UPDATE: The Milwaukee Journal Sentinel reports that Van Hollen filed two separate appeals. The appeal from Judge Flanagan's ruling in the NAACP case is pending in District II of the Court of Appeal, located in Waukesha County, but the appeal from Judge Niess' ruling was filed in District IV, which is located in Madison.

The Journal Sentinel predicts "the cases are likely to both be sent directly to the Supreme Court as matters of great statewide public importance."

UPDATE 3/20/12: The Green Bay Press Gazette reported that:

Judge Richard Niess declined to stay his ruling, writing in a three-paragraph decision that because he found the law to be unconstitutional, “it is as if it never existed,” Niess wrote. “It is no law at all.” He added that there can be no justification for enforcing the unconstitutional photo ID requirements that is consistent with the rule of law.

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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.



