Tuesday, March 13, 2012

More on Voter ID and what's next

I was struck by a couple of things in Judge Neiss' decision in League of Women Voters v. Walker. The first is how short  it is. The decision is not even eight full pages including three unusually long quotes from other decisions that are either inconclusive or unhelpful. The second is that much of what is there is given over to rhetoric better suited to affirming conclusions already reached than to legal analysis supporting those conclusions. Both of these characteristics lead to a number of unanswered questions.

First, the theory in this case is a bit different than last week's case, NAACP v. Walker. The idea here is that Art. III, secs. 1 and 2 of the state Constitution authorize the legislature to pass certain types of laws regarding voting. Art. III, sec. 1 provides that everyone who is a United States citizen over 18 who is resident in an election district is a qualified elector of that district. Art. III, sec. 2 states that laws may be passed defining residency, providing for registration and absentee voting, excluding certain defined classes of persons from suffrage and extending suffrage.

Judge Niess says that a photo identification requirement is not among the types of laws authorized by the Constitution. But this seems to be clearly wrong. The legislature certainly can pass laws enforcing the provisions of Art. III, secs 1 and 2. Judge Niess recognizes this, conceding that the legislature has implicit power to regulate elections.

That unavoidable concession would seem to be a rather serious obstacle to the plaintiffs' position. The photo ID law is quite clearly a law designed to enforce Art. III, sec. 1's definition of a qualified voter and Wisconsin's registration scheme which is authorized by Art, III, sec. 2. In other words, it is a way to verify that the person attempting to vote is that person who has registered to vote in the district (and is, therefore, a US citizen over the age of 18 who resides in the district).

You may not think it's necessary or a good idea, but that's not the legal question. If the law cannot stand, it must be because, even though it is within the legislature's power, it burdens the right to vote in some constitutionally impermissible way.

Unfortunately the decision simply assumes its conclusion. It doesn't really tell us why or even how we are to go about distinguishing between permitted and forbidden burdens. It asserts that the law abridges the right to vote, but doesn't explain how. To be sure, it imposes requirements that, if not complied with, will result in an inability to vote. But many permissible regulations of elections do that. If you don't comply with registration requirements, you can't vote. If you don't comply with the requirements of obtaining an absentee ballot or show up at the right polling place at the right time and during the right hours, you can't vote.

So it can't simply be that the law imposes some mandatory condition on exercise of the franchise. What it is about photo ID that is different and, more importantly, what is the standard by which its burden on the right to vote is to be assessed? The decision doesn't say. The court makes no finding of facts because it believes that no findings of fact are necessary. The decision refers to affidavits that have been filed but does not rely on (or explain) them, ultimately asserting only that there may be some people who lack the "financial, physical, mental, or emotional" resources to comply. (Emphasis supplied.)

What does that mean? Is it that there are some people who cannot get an ID? If so, who are they? Assuming that a few such people exist, does that justify striking the entire law? If there is always some way to get an ID, is it nevertheless a constitutional problem that the law makes it "too much trouble" to vote? If that's so, then what is the standard by which we determine how much trouble is too much?

I know what the plaintiffs can and cannot say about these matters. But I don't know how, for the court, they added up to a constitutional violation - at least not in any way that can be measured against the applicable constitutional language and case law.

So what's next? This case was filed before change in the venue law so that the appeal is to District IV of the Court of Appeals. Last week's case cannot be appealed to District IV, but must be venued in another district of the state's choosing. I would expect both courts to certify the respective cases to the state Supreme Court.


Phil said...

I'm always puzzled when you don't include a link to your source material. In this case, the decision itself.

In the very first paragraph of the decision, Judge Neiss writes:

"Article III is unambiguous, and means exactly what it says. It creates both necessary and sufficient requirements for qualified voters. Every United States citizen 18 years of age or older who resides in an election district in Wisconsin is a qualified elector in that district, unless excluded by duly enacted laws barring certain convicted felons or adjudicated incompetents/partially incompetents.

"The government may not disqualify an elector who possesses those qualifications on the grounds that the voter does not satisfy additional statutorily created qualifications not contained in Article III, such as a photo ID."

Requiring an ID to vote is not within the scope of the legislature to determine. Their powers are limited to the five explicit categories defined in Article III section 2. Nowhere is it permissible for the legislature to impose new requirements on voters.

I'm amused that you take issue with the length of the decision. It seems to me, the length is suitable for such a simple matter of law. Short, sweet and to the point.

Geo Mitchell said...

Well, Phil, I guess you are confident an expedited review by the WSSC will strike down the law. Surprising that all the nonpartisan legislative attys who looked at the issue missed what is obvious (to you and the judge).

Phil said...

I wouldn't call the attorney's working for ALEC (the ones who drafted the legislation) "nonpartisan legislative attys."

George Mitchell said...


The voter ID bill has been drafted, vetted, re-drafted, re-vetted for about two years. Whether some ALEC players were involved or not, I have no idea. I do know that a bona fide attempt was made, including with input from nonpartisan legislative legal staff, to assess constitutionality. It would be sheer idiocy to pass a bill with what you appear to regard as obvious constitutional flaws. Does not make sense for that to have occurred.

Phil said...

George, by that logic we would have no need of a system of adjudication to determine the constitutionality of any law. If we simply had to rely on the good faith efforts of dedicated legislative staffers and lawyers like Michael Best, we'd be living in a paradise of wonders.

"And I would have gotten away with it too, if it weren't for you pesky judges!"

Seriously? That's your argument?

George Mitchell said...


You misrepresent my argument. That's known as the straw man approach.

Obviously I would not argue against the need for an independent judiciary.

What I disputed was your apparent contention that the law is obviously unconstitutional. The operative word there is "obviously." No, it is not obvious, as Rick's critique of the opinion illustrates. If the WSSC ends up overturning the law (or sustaining it) it likely will be a split decision, suggesting there is nothing obvious about the legal issues at hand.

MAL said...

Even the Wisconsin Attorney General has admitted that legal, registered voters should "the injunction [be stayed] ... may be left without an opportunity to obtain their IDs by the date of the election,” and will be disfranchised. [DoJ press release, Friday, March 09, 2012]

These are legal, registered voters who cannot vote because the GOP legislature (with no democrats voting in favor and republicans voting against) passed the partisan voter obstruction bill, 100,000s of otherwise legal voters.

The Wisconsin constitution does not allow the enactment of laws that "cancel or substantially burden a constitutionally guaranteed sacred right, such as the right to vote," as Judge Niess wrote.

You know this; yet you continue to flack for the Republican Party, as though disinfranchising voters were of no great concern.


George Mitchell said...

I was all set to comment on MAL's distortions when I remembered by pledge to ignore those who don't have names they are willing to use.

Anonymous said...

You broke your pledge, George Mitchell. But, like any politician, you slant it in such a way as to appear that you are upholding your principles.

Anonymous said...

"Judge Niess says that a photo identification requirement is not among the types of laws authorized by the Constitution. But this seems to be clearly wrong."

Everyone's a textualist until they aren't. Tell me professor, how, exactly, a law requiring the production of a photo ID, but lacking any requirement that said ID include a current address or date of birth, can be said to enforce the provisions of Art. III, secs 1 and?

Unknown said...

Seems like there aspersions being thrown about the drafting being nefarious. These comments studiously avoid the elephant in the room that that the bill was modeled on another state's law which has already been upheld by the US Supreme Court.



Is the Wisconsin system of law some sort of island? Or echo chamber?

Actually, it seems nefarious to not follow the Supreme Court's lead. And doubly nefarious to besmirch and combat good faith effort to enact a law that 70 percent of Wisconsinites favor.

A new poll shows most people support a state law that requires voters to show photo identification at the ballot box starting next month.


After a history of delays and vetoes why not follow the will of the people?

Anonymous said...

"After a history of delays and vetoes why not follow the will of the people?"

Because they want to disenfranchise the peoples will in order to gain an illicit political advantage at the ballot box.

Richard J. Daley would have sure been proud...