[EL] Wisconsin voter id case

Thu Jul 31 13:03:10 PDT 2014

I really don't want to get too heavily into this, but I don't understand the first point you reader makes. The position it seems to take - which I see repeatedly - is that if something is not a foolproof way to prevent future voter fraud, then it serves no purpose. While the inefficiency of a method of enforcement may be relevant to the constitutionality of any law that may violate rights, rarely do people argue that a law is absolutely worthless because there is some means of getting around it. Certainly the type of fraud Monroe was convicted of could and sometimes would be prevented by the law, simply by raising the possibility of getting caught (for example, Monroe may have not considered or decided to commit voter fraud in time to use absentee ballots, in which case the election day ID could be a deterrent to his schemes by making it more likely he would be caught. (As I originally noted, the most common ID that people are likely to have does include an address.). So the ID law may be relatively effective at heading off last minute efforts or decisions. And for those with more foresight, the further out from an election a fraud scheme is cooked up and recruits found to go get alternative IDs, the greater the likelihood (I would guess) of its getting caught.

If that is the standard to be used, however, is absolute prevention, it strikes me that it undercuts the argument against the law because it is the same reasoning that says an ID requirement that is a minor deterrent (or major deterrent) to voting is not at all problematic, because people can get around it with enough determination and foresight. Determination and foresight matters, or it doesn't.

I think opponents of ID laws consistently undercut the case against them by refusing to acknowledge that there is some fraud (albeit probably much less than many want to argue), and that ID laws might deter at least some of it (even if less than some people claim). That makes them less than credible. Focusing more seriously on the level of fraud and more realistically on the effect of laws would help their arguments in court.

In so many cases, judges are faced with a binary choice, and he cannot rewrite the law on some middle ground - if the issue is close, the party that seems more reasonable is likely to win. ID opponents, for the most part, have not come across as very reasonable in the last decade.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Rick Hasen [rhasen at law.uci.edu]
Sent: Thursday, July 31, 2014 3:46 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] Wisconsin voter id case

UPDATE: A reader points out ” The only possible prevention would — maybe — have been the absentee voting in his son’s name.  Under Act 23, you do have to enclose a photocopy of an ID with a mailed absentee ballot  in most cases  (either when you request it or return it).  But he could have easily gotten around it by just making such a copy when it was convenient for him.  If you ask for regular absentee ballots, you need to include a copy of the ID when you first apply, but do not have to do so after that initial application (unless you reregister). Registering in multiple locations — not prevented, since any photo ID you present  when registering doesn’t have to have an address on it; you can satisfy that requirement with other documents.  Voting [in Wisconsin] and in Indiana — not prevented, since he apparently had an Indiana drivers license.”

Another reader pointed out 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.

On 7/31/14, 11:26 AM, Rick Hasen wrote:
D'oh!  I sent this and neglected to change the header properly.

On 7/31/14, 11:25 AM, Rick Hasen wrote:
If anyone responds to Brad, please use this (or another substantive) heading.
Thanks.
On 7/31/14, 11:15 AM, Smith, Brad wrote:
As many on this list know, I'm not a big drum beater for claims of voter fraud, whether of today's GOP claims or the "black box" conspiracy theories rampant in some liberal circles a decade and more ago, and I agree with at least some, if not many, of the criticisms of voter ID laws, although I do think most of those passed are constitutional (if not necessarily wise policy).

With that caveat, I do think that
1) it's not at all clear that a voter ID law would not have prevented the fraud cited by the Court. What is almost certainly the most common form of ID voters would present in Wisconsin, a driver's license, includes address information. Some of the other documents that satisfy the law do as well. This would not absolutely "stop" the type of fraud (multiple voting in more than one location, voting where did not live, providing false information) that Monroe engaged in, but it could certainly make it more likely to be caught - raising suspicions of poll officials, for example, when the address didn't match the claimed residence, or requiring a casual fraudster such as Monroe to use more effort to obtain other documents he might not have, that may discourage him from pursuing the fraud).

2) "...all of them were caught without a voter id requirement" (emphasis in original). If I am correct that a voter ID requirement would make it easier to catch some fraud, however, that's not terribly relevant.

3) presumably the Court, in evaluating the constitutionality of the law, shouldn't be overly concerned with which side benefits most from fraud.

Whether the amount of fraud that might be prevented is worth it, and what standard of review judges should use in making that evaluation, are other questions.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Rick Hasen [rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>]
Sent: Thursday, July 31, 2014 12:41 PM
To: law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: [EL] more news 7/31/14

Irony Dept: Only Evidence of Voter Fraud Cited by WI Supreme Court Involves Scott Walker Supporter Committing Fraud ID Law Would Not Prevent<http://electionlawblog.org/?p=63868>
Posted on July 31, 2014 9:37 am<http://electionlawblog.org/?p=63868> by Rick Hasen<http://electionlawblog.org/?author=3>

In both of today’s Wisconsin Supreme Court voter id cases (the NAACP case<http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=118667> and the LWV case<http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=118665>), the court majority includes an identical footnote to rebut the argument that there’s no good evidence of in person, impersonation voter fraud to support the state’s voter id requirement. (Justice Crooks’ dissent in the NAACP case describes the lack of good evidence of impersonation voter fraud, and the testimony of Professor Kenneth Mayer in some detail).  Here is the footnote, in full:

A recent filing in Milwaukee County demonstrates that voter fraud is a concern. See State v. Monroe, 2014CF2625 (June 20, 2014), wherein the Milwaukee County District Attorney’s office filed a criminal complaint against Robert Monroe that alleged 13 counts of voter fraud, including multiple voting in elections and providing false information to election officials in order to vote.

My irony meter started blinking uncontrollably when I read this.  The Monroe allegations were recently described by TPM in Scott Walker Supporter Charged With Major Voter Fraud Claims Amnesia:

A supporter of Wisconsin Gov. Scott Walker (R) has been charged with over a dozen counts of election fraud — though he reportedly claims a form of temporary amnesia has left him unable to recall his actions.

In an indictment filed in Milwaukee County court on Friday, Robert Monroe, 50, of Shorewood, Wis., was charged with 13 felony counts of election fraud, each of which could carry up to three and a half years in prison, or a $10,000 fine, upon conviction. Monroe is accused of registering to vote in more than one place, voting where he didn’t live, voting more than once in the same election, and providing false information to election officials.

The indictment said that Monroe, a health insurance executive, “became especially focused upon political issues and causes” in 2011 and 2012, and was particularly invested in the recall elections that followed the state’s fight over public employees’ collective bargaining rights. Monroe allegedly cast at least two ballots in three elections (an April 2011 Supreme Court election, an August 2011 state Senate recall election, and the 2012 presidential election) and cast five ballots in the state’s June 2012 gubernatorial recall.

>From TPM’s description of the indictment, 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. And note that all of them were caught without a voter id requirement. And note that despite the fact that the most rabid conservatives calling for voter id claim (as Roger Clegg did at a recent event I did with him at the University of Chicago’s Institute of Politics) that when voter fraud occurs it is usually done to help Democrats, this only case cited by the Wisconsin Supreme Court majority involves a rabid conservative supporter of Scott Walker.

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Posted in election administration<http://electionlawblog.org/?cat=18>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>
WI Supreme Court Rewrites State Voter ID Law to Prevent It from Being an Unconstitutional Poll Tax<http://electionlawblog.org/?p=63866>
Posted on July 31, 2014 9:29 am<http://electionlawblog.org/?p=63866> by Rick Hasen<http://electionlawblog.org/?author=3>

In today’s 4-3 Wisconsin Supreme Court voter id case (the NAACP case<http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=118667>, not the LWV case<http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=118665>), the Wisconsin Supreme Court splits along party lines in upholding the voter id law against a challenge that it violates the state constitution. Nonetheless the Court rewrites the law to avoid a constitutional problem it identifies. Roughly speaking, although WI law lets you get a free state id if you don’t have one for voting, the costs of obtaining the birth certificate or other proof needed to get the id is not free.  The majority then imposes a requirement that the DMV consider giving the birth certificate for free for this purpose using its discretion. From paragraph 70:

Stated otherwise, to invoke an administrator’s discretion in the issuance of a DOT photo identification card to vote, an elector:  (1) makes a written petition to a DMV administrator as directed by Wis. Admin. Code § Trans 102.15(3)(b) set forth above; (2) asserts he or she is “unable” to provide documents required by § Trans 102.15(3)(a) without paying a fee to a government agency to obtain them; (3) asserts those documents are “unavailable” without the payment of such a fee; and (4) asks for an exception to the provision of § Trans 102.15(3)(a) documents whereby proof of name and date of birth that have been provided are accepted.  § Trans 102.15(3)(b) and (c).  Upon receipt of a petition for an exception, the administrator, or his or her designee, shall exercise his or her discretion in a constitutionally sufficient manner.

Dissenting Justice Crooks remarks on this procedure:

If the majority opinion leaves in place the discretion of DMV administrators to issue exceptions to those burdened by the cost of obtaining underlying documentation, it fails to guarantee constitutional protections against poll taxes. On the other hand, if the majority opinion requires DMV administrators to issue photo identification cards to individuals who are burdened by the cost of obtaining required underlying documentation, then it is directing a nonparty to take specific action, which it has no authority to do. In sum, the remedy imposed by the majority, under either
approach, is flawed.

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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>
“Hundreds of big donors, including Obama bundlers, are ‘Ready for Hillary’”<http://electionlawblog.org/?p=63864>
Posted on July 31, 2014 9:21 am<http://electionlawblog.org/?p=63864> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo reports.<http://www.washingtonpost.com/politics/hundreds-of-big-donors-including-obama-bundlers-are-ready-for-hillary/2014/07/31/e9dfbdf2-181e-11e4-9349-84d4a85be981_story.html>

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D63864&title=%E2%80%9CHundreds%20of%20big%20donors%2C%20including%20Obama%20bundlers%2C%20are%20%E2%80%98Ready%20for%20Hillary%E2%80%99%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
Paul Gronke’s Reflections on Being Election Observer in Ukraine<http://electionlawblog.org/?p=63862>
Posted on July 31, 2014 8:41 am<http://electionlawblog.org/?p=63862> by Rick Hasen<http://electionlawblog.org/?author=3>

Top this week’s Electionline Weekly<http://www.electionline.org/index.php/electionline-weekly>.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D63862&title=Paul%20Gronke%E2%80%99s%20Reflections%20on%20Being%20Election%20Observer%20in%20Ukraine&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>
“Eric Holder Takes Voting Rights Battle to Ohio, Wisconsin”<http://electionlawblog.org/?p=63860>
Posted on July 31, 2014 8:38 am<http://electionlawblog.org/?p=63860> by Rick Hasen<http://electionlawblog.org/?author=3>

WSJ reports.<http://online.wsj.com/articles/eric-holder-takes-voting-rights-battle-to-ohio-wisconsin-1406752699>

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Posted in Department of Justice<http://electionlawblog.org/?cat=26>, election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>
“125,000 receive erroneous notification regarding voting status”<http://electionlawblog.org/?p=63858>
Posted on July 31, 2014 8:37 am<http://electionlawblog.org/?p=63858> by Rick Hasen<http://electionlawblog.org/?author=3>

Times Dispatch<http://www.timesdispatch.com/news/state-regional/virginia-politics/receive-erroneous-notification-regarding-voting-status/article_6a908c80-1822-11e4-be1e-001a4bcf6878.html>: “The Virginia Department of Elections has erroneously mailed notifications to about 125,000 registered Virginia voters raising uncertainty regarding their voting status.”

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Posted in election administration<http://electionlawblog.org/?cat=18>
“Minneapolis Registration Controversy Leads to Wider Scrutiny of Private Mail Centers”<http://electionlawblog.org/?p=63856>
Posted on July 31, 2014 8:34 am<http://electionlawblog.org/?p=63856> by Rick Hasen<http://electionlawblog.org/?author=3>

A ChapinBlog.<http://blog.lib.umn.edu/cspg/electionacademy/2014/07/minneapolis_registration_contr.php>

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Posted in absentee ballots<http://electionlawblog.org/?cat=53>, election administration<http://electionlawblog.org/?cat=18>
“Corporations Have Found Yet Another (Secret) Way To Help Get Politicians Elected”<http://electionlawblog.org/?p=63854>
Posted on July 31, 2014 8:32 am<http://electionlawblog.org/?p=63854> by Rick Hasen<http://electionlawblog.org/?author=3>

Paul Blumenthal<http://www.huffingtonpost.com/2014/07/31/super-pacs-corporations_n_5635382.html>:

On June 14, 2012, someone created a corporation in Ohio called American Dream Fund LLC<http://www2.sos.state.oh.us/reports/rwservlet?imgc&Din=201217001210>. Six months later, this corporation made a $250,000 contribution to a super PAC called Advancing Freedom Action Network<http://about.me/advancingfreedom>, which supports the re-election of Ohio Secretary of State Jon Husted (R).

The actual person behind American Dream Fund LLC remains unknown. The limited liability corporation was created by an incorporation firm called CT Corporation System. The LLC’s listed agents are simply hired incorporators working for CT Corporation System.

The contribution itself was even made harder to detect. Advancing Freedom Action Network, which was registered with the Federal Election Commission in August 2012 by Husted ally Kevin DeWine, failed to file reports electronically, as required by law. The American Dream Fund contribution appeared only on a paper report<http://docquery.fec.gov/pdf/341/13031021341/13031021341.pdf>, where it was apparently missed by the FEC staff and automated software. It is not noted on the FEC’s webpage for the super PAC or in other campaign contribution databases across the Internet.

DeWine did not respond to a request for comment.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, election administration<http://electionlawblog.org/?cat=18>
“Politicians: The Good , The Bad, and The Corrupt–and their Different ‘Constituencies’”<http://electionlawblog.org/?p=63852>
Posted on July 31, 2014 8:30 am<http://electionlawblog.org/?p=63852> by Rick Hasen<http://electionlawblog.org/?author=3>

Bauer blogs.<http://www.moresoftmoneyhardlaw.com/2014/07/politicians-good-bad-corrupt-different-constituencies/>

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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Groups Seek Summary Judgment Against FEC for Dismissal of Crossroads GPS Complaint”<http://electionlawblog.org/?p=63850>
Posted on July 31, 2014 8:25 am<http://electionlawblog.org/?p=63850> by Rick Hasen<http://electionlawblog.org/?author=3>

See here<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=2555:fec-general-counsels-findings-a-recommendations-to-investigate-ignored&catid=63:legal-center-press-releases&Itemid=61>.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>

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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
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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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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<mailto: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<mailto: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<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
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