[EL] Wisconsin thoughts

Tue Apr 29 12:45:30 PDT 2014

Thanks to all who have written of my typo at the end.  Of course I meant 
a huge victory for OPPONENTS of voter id.

On 4/29/2014 12:31 PM, Rick Hasen wrote:
> <http://electionlawblog.org/>
>
>
>     Breaking News: Federal District Court Strikes Wisconsin Voter ID
>     in ACLU Case <http://electionlawblog.org/?p=60972>
>
> Posted on April 29, 2014 11:35 am 
> <http://electionlawblog.org/?p=60972>by Rick Hasen 
> <http://electionlawblog.org/?author=3>
>
> Here are my initial thoughts on /Frank v. Walker, / 
> <http://t.co/1zYaAALxjf>in which a federal district court held that 
> Wisconsin's voter id law both violates the Constitution and Section 2 
> of the Voting Rights Act:
>
> 1. This is about the best possible opinion that opponents of voter 
> identification laws could have hoped for. It is heavy on both facts 
> and on law.  It is thoughtful and well written. It finds that a voter 
> id law serves neither an anti-fraud purposes (because "virtually no 
> voter impersonation occurs in Wisconsin and it is exceedingly unlikely 
> that voter impersonation will become a problem in Wisconsin in the 
> foreseeable future") nor voter confidence purposes. It finds that it 
> burdens /lots/ of voters (up to 300,000) voters. It finds these 
> burdens fall especially on Black and Latino voters and that the reason 
> is does is poverty, which is itself the result of prior legal 
> discrimination.It enjoins enforcement of the law for everyone, and 
> expresses considerable doubt that the Wisconsin legislature could 
> amend the law to make it constitutional.  It is about as strong a 
> statement as one might imagine as to the problems the voter id law.
>
> 2. Wisconsin is likely to appeal, and it is unclear how the case will 
> fare in the 7th Circuit and possibly the Supreme Court. (Further 
> making this complicated is that there are state case putting voter id 
> on hold and now pending before the State Supreme Court.)  A special 
> twist is that Judge Posner of the Seventh Circuit made controversial 
> remarks 
> <http://www.thedailybeast.com/articles/2013/10/23/why-judge-posner-is-right-on-voter-id-laws.html> 
> about voter id laws being a means of voter suppression, and expressing 
> regret about his earlier decision in the Indiana voter id case. It is 
> not clear what role, if any, he will play in any appeal.
>
> 3. Both the constitutional law and VRA section 2 claims are 
> controversial.  On the con law point, the judge purports to apply the 
> "Anderson-Burdick" balancing test that the Supreme Court applied in 
> upholding Indiana's voter id law in the /Crawford/ case. The judge 
> purports to apply /Crawford/, but reaches a different result. It is 
> not clear that this is a fair application of that test--which seems to 
> suggest at most that the law be upheld as to most voters but create an 
> "as applied" exemption for a specific class of voters. The judge said 
> that this was not practical in this case given the large number of 
> Wisconsin voters who lack id.  It is not clear that the appellate 
> courts will agree.
>
> 4. On the VRA issue, this is the first full ruling on how to 
> adjudicate voter id vote denial cases under section 2.  The key test 
> appears on page 52 of the pdf: "Based on the text, then,
> I conclude that Section 2 protects against a voting practice that 
> creates a barrier to voting
> that is more likely to appear in the path of a voter if that voter is 
> a member of a minority
> group than if he or she is not. The presence of a barrier that has 
> this kind of disproportionate impact prevents the political process 
> from being 'equally open' to all and results in members of the 
> minority group having 'less opportunity' to participate in the 
> political process and to elect representatives of their choice." The 
> judge also approaches the causation/results question in a 
> straightforward way.  It is not clear whether the appellate courts 
> will agree or not agree with this approach, which would seem to put a 
> number of electoral processes which burden poor and minority voters up 
> for possible VRA liability.
>
> In sum, this is a huge victory for voter id proponents. But time will 
> tell if this ruling survives.
>
> [/T//his post has been updated./]
>
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> Posted in election administration 
> <http://electionlawblog.org/?cat=18>, The Voting Wars 
> <http://electionlawblog.org/?cat=60>, voter id 
> <http://electionlawblog.org/?cat=9>
>
> -- 
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://www.law.uci.edu/faculty/full-time/hasen/
> http://electionlawblog.org
>
>
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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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