Kentucky law prof misses the mark

Yesterday's Milwaukee Journal Sentinel featured a column by a law professor from the University of Kentucky who made some serious charges against the Wisconsin Supreme Court in connection with its decisions last week on voter ID . Professor Joshua Douglas accused he Court of hypocrisy. He said that the decisions reflected "both breathtaking judicial activism and ignorance regarding the difference between the federal and state constitutions." He criticizes the Court for improperly questioning "a federal court's analysis on a federal issue."

He's wrong - perhaps even "breathtakingly" wrong - on all three counts.

Professor Douglas seems to think that the Court is hypocritical and "activist" (a term I suspect he would never use other than polemically) because it adopted a "saving construction" of Wisconsin law. The Court read state law to require photo identification to be given even to persons who lack documents, such as a birth certificate, used to prove their identity and who cannot get them without having to pay a fee. This enabled it to conclude that the voter ID law does not impose a burden on voters who lack these documents that is sufficiently severe to violate the state constitution.

Professor Douglas seems to think that this is wrong because a saving construction can "only" be made with respect to the statute being challenged and that this construction was not of the voter ID law itself but of a "a separate administrative regulation — one that was not at issue in the case."

There is no such ironclad rule that a saving construction of state law must be to the statute that is challenged when, as here, it is the interaction between that law (voter ID) and other statutes (e.g., those requiring a fee to obtain a birth certificate) that are said to impose an unconstitutional burden.

In any event, the Court was construing the voter ID law. It is the voter ID law - Act 23 - that requires the state Department of Transportation to provide IDs free of charge for purposes of voting. In implementing the law, however, the DOT required applicants to produce certain proof of identity that cannot be obtained without paying a fee. An administrative rule said that it may, but need not, waive this requirement. The Supreme Court's decision held, in effect, that the voter ID law's mandate that ID be provided free of charge did not permit any discretion when it comes to IDs to be used for voting. (It is true that the parties seemed late to the game on this; but the impact of this regulation was discussed in briefs and at oral argument.)

There is room for disagreement over whether this construction is consistent with the statutory language, but I don't believe that the Court's attempt to undertake it was hypocritical or "activist." Construing state law is what state courts do.

This is why the Supreme Court was not wrong - or at least not out of bounds - in criticizing the decision of a federal court to move ahead with a challenge under the United States Constitution and federal Voting Rights Act. The decision in question is Judge Adelman's opinion enjoining voter ID in Frank v. Walker. In a footnote, the Wisconsin Supreme Court said that his decision to move ahead before it had first ruled on what the voter ID law actually does was "most unusual." These comments were not, as Professor Douglas' thinks, a state court questioning "a federal court's analysis of a federal issue." Rather, it was a state court making the rather obvious black letter point that a federal court often cannot resolve a federal challenge to a state law without knowing what a state law means. On this latter question, it is axiomatic that the interpretation of the state's highest court controls.

As I have written elsewhere, last week's decision may have implications for the appeal of Judge Adelman's decision in Frank. In that case, the plaintiffs argued - and Judge Adelman accepted - that persons seeking free state ID would be unable to get them if they lacked underlying proof of identification and would have to pay to get it. That now turns out to have been wrong.

It is, of course, possible that Judge Adelman would reach the same decision on voter ID even with last week's saving construction. But he - and now the appellate court - are bound to accept it as correct because the Wisconsin Supreme Court is the final arbiter of what state law means. The court of appeals will now either have to review his decision without resort to one of the premises on which it was based or send it back for further consideration. One should not be suprised that the Wisconsin court thinks the federal court should have waited for it to clarify state law before moving ahead with a federal challenge.

Indeed, the Frank case was stayed for quite some time to permit state litigation to move forward and many lawyers believed that Judge Adelman would wait for the state courts to rule.

Finally, Professor Douglas should be disabused of any notion that the Wisconsin Supreme Court does not "understand" the difference between the state and federal Constitutions. I am quite confident that it does.

It is true, as he notes, that there is no explicit "right to vote" in the federal constitution and that there is such an express right in Art. III, sec. 1 of the state Constitution. But federal courts have held that voting is a "fundamental right" subject to protection under the Fourteenth Amendment's Equal Protection Clause. While this does mean that, in a sense, the "polestar" under the US Constitution is "equality," it is also important to be more specific about what that means.

It does not mean that federal courts will no invalidate state election laws that treat everyone the same. To the contrary, any law that burdens the right to vote will be subject to federal review with the standard of review, i.e., the level of scrutiny applied by the court, varying based on the nature of the burden that the challenged law imposes.

The Wisconsin Supreme Court certainly understood that the challenge before it was under the state Constitution. But it held that its precedent required it to adopt the same standard used by federal courts in assessing claims under the Equal Protection Clause.

You can argue that it should have adopted a different - and tougher - standard. I don't think so - and argued as much in an amicus brief filed on behalf of former Lieutenant Governor Margaret Farrow and others. A more exacting standard would unduly interfere with state regulation of regulations as Justice Roggensack recognized.

But the mere fact that the Supreme Court disagreed with you does not mean that it did not "understand" the question. Professor Douglas wants the Wisconsin Supreme Court to review burdens on the right to vote differently than federal courts. There is a vigorous debate over when and why the state Supreme Court might depart from federal interpretations of similar constitutional guarantees. I know that, often to my disappointment, it rarely does so. While the existence of an express right to vote may be used to impose a higher standard of review than the federal courts use in protecting the "fundamental" right to vote under the Fourteenth Amendment, I am not surprised that the state Supreme Court decided to move in lockstep with the latter line of cases. That is what it usually does.



Cross posted at Purple Wisconsin