Thursday, May 30, 2013

Today's Voter ID decision could have legs

I hate to say that I told you so. I really do. But not enough to refrain from saying it.

I have always thought that the argument that voter identification is unconstitutional because it imposes an "additional qualification" on voters to be imaginative but fundamentally flawed. The argument is that the Wisconsin Constitution says that the legislature may require voters to be over 18, citizens of the United States and residents of the districts in which they seek to vote. It says that the legislature may provide for registration and disqualify certain categories of voters, i.e., felons and persons who are incompetent. But, the argument goes, since the Constitution doesn't say the legislature can require photo identification, it can't.

The problem doesn't take a legal genius to identify. Photo ID is not an "additional qualification" outside of those listed in the Constitution, it is a means to ensure that the qualifications that the legislature can and has enacted are complied with, i.e,. it is a way to ensure that the person who seeks to vote is that person over 18 who is a United States citizen and resident of the district who has registered to vote.

Now you can argue that this is unnecessary or may not be the best way of doing that, but the courts don't get to decide what is "necessary" or "best." As the Court of Appeals ruled today, the legislature may enact reasonable election regulations so long as they are not so burdensome as to effectively deny the right to vote. Because that hadn't been proven, photo ID had to stand.

Today decision, in a case called League of Women Voters v. Walker, does not disturb a separate injunction against the law in NAACP v. Walker which remains pending before a different district of the Court of Appeals.   

However, it may very well result in reversal in NAACP as well. Here’s why.

Today’s decision makes clear that, under the Wisconsin Constitution, the legislature may enact reasonable election regulations unless a challenged regulation is so burdensome that it effectively denies potential voters their right to vote. This is not the standard that was applied by the court in NAACP. While we believe that case ought to be reversed and dismissed, it would appear that, at minimum, the Court of Appeals must vacate the NAACP decision and send the case back to the circuit court with instructions to apply the proper standard.

Full disclosure: Along with my colleagues at the Wisconsin Institute for Law & Liberty, I filed an amicus brief in League of Women Voters on behalf of a diverse group of community leaders, including a former lieutenant governor, a journalist, a retired Milwaukee police detective who specialized in voter fraud, and leaders in the Hispanic and African-American communities, urging that the court show appropriate deference to the legislature and the law be upheld.

Cross posted at Purple Wisconsin


George Mitchell said...

Professor, haven't you previously posted about the lack of decorum in the media and in politics? Yet, you find no problem in displaying smugness right from the get-go. Which is fine, but some could reasonable argue that your behavior is no different than Graeme Zielinski.

Besides, should NOT the disclaimer come before anything that you write???

The crux of Voter ID is to reduce voter fraud. Investigations by the Houston Chronicle, The New York TImes, the Brennan Center, and the New Yorker, as well as a definitive work on the subject by Lorraine Minnite, provide counter evidence to your assertions.

Anonymous said...

First, this post is nothing like the behavior of Graeme Zielinski. Your purposefully poor comparison shows your intention. Your sullied behavior is standard within your ranks. We expect it, but it should be called out none the less.

Second, the intent of the law has nothing do to with the legality or constitutionality of the law. Shark And Shepherd is dealing only in legality.

Hopefully soon, we will see real evidence as to how well Voter ID works instead of "evidence" from opponents of it.

George Mitchell said...

Anony, both Zielinski and the Professor have shown a lack of civility; the severity, of course, may vary.

"Your sullied behavior is standard within your ranks. We expect it, but it should be called out none the less."

So, by a simple blog post you are able to determine that I am of a particular ideology? Liberals and conservatives most certainly enjoy making fools of themselves when they make accusations of the other side in this manner. I suggest you grow up.

"Hopefully soon, we will see real evidence as to how well Voter ID works instead of "evidence" from opponents of it."

Refute the evidence, rather than automatically disregard it.

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