ICYMI: Law Being Ignored in Post-Election Cases in Wisconsin

An article a few weeks back by the MacIver Institute gives some alarming numbers on Same Day Registration in Wisconsin.  While the article focuses on potential vote fraud, more alarming may be how local authorities ignore the law. 

Even though 3,871 voters across the state couldn’t be verified, only 954 were referred to the local district attorneys. According to state officials, all of them should have been referred, because that’s the law.

“If the postcard comes back to the municipal clerk as undeliverable, the clerk shall remove the voter from the eligible list and provide the voter’s name to the district attorney’s office,” said state Elections Commission spokesman Reid Magney.. . .

But a staggering 316 municipalities flouted that law, deactivating more registrations than they referred to their DAs, potentially opening the door to thousands of cases of illegal voting.

This is a problem.  Essentially it means if you fraudulent register and vote in Wisconsin and are caught, your name will be removed from the Voter Registration list and nothing else.  Your vote will still count and in Same Day Registration Wisconsin, you can register again the next election to start the process over.

Supreme Court Stays Out of Partisan Gerrymandering Cases - For Now

In a victory - at least for now - for courts staying out of partisan gerrymandering disputes, the Supreme Court today decided two of the three redistricting cases pending before it.

In Gill v. Whitford, a challenge to Wisconsin's congressional district map, the Court unanimously dismissed the case for lack of standing (citations omitted):

Certain of the plaintiffs before us alleged that they had such a personal stake in this case, but never followed up with the requisite proof. The District Court and this Court therefore lack the power to resolve their claims. We vacate the judgment and remand the case for further proceedings, in the course of which those plaintiffs may attempt to demonstrate standing in accord with the analysis in this opinion. . . . 

Regarding standing, the court held that the plaintiffs had a “cognizable equal protection right against stateimposed barriers on [their] ability to vote effectively for the party of [their] choice.” It concluded that Act 43 “prevent[ed] Wisconsin Democrats from being able to translate their votes into seats as effectively as Wisconsin Republicans,” and that “Wisconsin Democrats, therefore, have suffered a personal injury to their Equal Protection rights.” The court turned away the defendants’ argument that the plaintiffs’ injury was not sufficiently particularized by finding that “[t]he harm that the plaintiffs have experienced . . . is one shared by Democratic voters in the State of Wisconsin. The dilution of their votes is both personal and acute.” . . . 

In cases where a plaintiff fails to demonstrate Article III standing, we usually direct the dismissal of the plaintiff ’s claims. This is not the usual case. It concerns an unsettled kind of claim this Court has not agreed upon, the contours and justiciability of which are unresolved. Under the circumstances, and in light of the plaintiffs’ allegations that Donohue, Johnson, Mitchell, and Wallace live in districts where Democrats like them have been packed or cracked, we decline to direct dismissal.  

We therefore remand the case to the District Court so that the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence—unlike the bulk of the evidence presented thus far—that would tend to demonstrate a burden on their individual votes. We express no view on the merits of the plaintiffs’ case. We caution, however, that “standing is not dispensed in gross”: A plaintiff ’s remedy must be tailored to redress the plaintiff ’s particular injury. 

While this may seem like the Court side-stepped the issues in the case, the standing decision was integral to the court's deciding in favor of the plaintiffs below.  By reversing the court's questionable conclusions on standing being shown through statewide partisan voting results, the Court today made it more difficult for future claimants to bring claims under such novel legal theories by properly placing the evidentiary burden on map challengers to show concrete and particularized injury.  (It is also worth noting that the length of Justice Roberts' opinion for the Court demonstrates how complicated standing doctrine and the law in general are in the area of redistricting.)  This is clear in the liberal justices' concurrence.

Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, lamented that the plaintiffs did not argue the case appropriately to let the Court decide questions of proper district lines on political grounds, which liberals are desperate to do (citations omitted):

Partisan gerrymandering, as this Court has recognized, is “incompatible with democratic principles.” More effectively every day, that practice enables politicians to entrench themselves in power against the people’s will. And only the courts can do anything to remedy the problem, because gerrymanders benefit those who control the political branches. None of those facts gives judges any excuse to disregard Article III’s demands. The Court is right to say they were not met here. But partisan gerrymandering injures enough individuals and organizations in enough concrete ways to ensure that standing requirements, properly applied, will not often or long prevent courts from reaching the merits of cases like this one. Or from insisting, when they do, that partisan officials stop degrading the nation’s democracy. . . .

Courts have a critical role to play in curbing partisan gerrymandering. Over fifty years ago, we committed to providing judicial review in the redistricting arena, because we understood that “a denial of constitutionally protected rights demands judicial protection.” Indeed, the need for judicial review is at its most urgent in these cases. For here, politicians’ incentives conflict with voters’ interests, leaving citizens without any political remedy for their constitutional harms. Of course, their dire need provides no warrant for courts to disregard Article III. Because of the way this suit was litigated, I agree that the plaintiffs have so far failed to establish their standing to sue, and I fully concur in the Court’s opinion. But of one thing we may unfortunately be sure. Courts—and in particular this Court—will again be called on to redress extreme partisan gerrymanders. I am hopeful we will then step up to our responsibility to vindicate the Constitution against a contrary law.  

Justices Thomas and Gorsuch concurred but would have dismissed the case without allowing the plaintiffs another attempt at proving standing.

In a per curiam decision in Benisek v. Lamone, the Court affirmed a district court decision not to issue a preliminary injunction on a First Amendment retaliation partisan gerrymandering challenge to a single district in Maryland (citations omitted):

In addition, the District Court emphasized that it was concerned about “measuring the legality and constitutionality of any redistricting plan in Maryland . . . according to the proper legal standard.” In the District Court’s view, it would be “better equipped to make that legal determination and to chart a wise course for further proceedings” after this Court issued a decision in Gill. Plaintiffs ask this Court to vacate the District Court’s order and remand for further consideration of whether a preliminary injunction is appropriate. . . .

Even if we assume—contrary to the findings of the District Court— that plaintiffs were likely to succeed on the merits of their claims, the balance of equities and the public interest tilted against their request for a preliminary injunction. . . .  

On top of this time constraint was the legal uncertainty surrounding any potential remedy for the plaintiffs’ asserted injury. At the time the District Court made its decision, the appeal in Gill was pending before this Court. The District Court recognized that our decision in Gill had the potential to “shed light on critical questions in this case” and to set forth a “framework” by which plaintiffs’ claims could be decided and, potentially, remedied. . . . In these particular circumstances, we conclude that the District Court’s decision denying a preliminary injunction cannot be regarded as an abuse of discretion.

One line in Benisek regards the fact that the plaintiffs did not challenge the 2011 district map until 2016 (emphasis added):

In considering the balance of equities among the parties, we think that plaintiffs’ unnecessary, years-long delay in asking for preliminary injunctive relief weighed against their request.

This may prove to be extremely important in future litigation, as Democrats and liberals are still filing new cases challenging the maps enacted after the 2010 census.

But for now, the Supreme Court has decided to stay out of partisan gerrymandering claims, against the wishes of its liberal members to use the Court to judge the wisdom of political balances of power in the states.  That is a temporary victory for the proper role of the courts, temporary only because the liberals and Democrats will continue to bring these claims until the Court issues a decision explicitly barring courts from deciding them.  But today's decisions in Gill and Benisek have established justiciability standards that raise the bar for bringing those claims.

The Senate Blue Slip Saga Continues

Senate Democrats continue to wish that the blue slip courtesy was a rule of the Senate. However, it is not a formal rule--never was a rule--just a courtesy to advise the Senate Judiciary Committee.

We have previously highlighted the history of the blue slip and how many past Senate Judiciary chairs have chosen to manage the blue slip.

Current Senate Judiciary Chairman Chuck Grassley has previously spoken on this issue: For circuit courts, which cover multiple states, a negative or unreturned  blue slips will not be permitted to hold up nominees, unless the White House failed to consult with the home state senators; however, for district courts, which are confined to one state, the blue slip will carry considerably more weight and influence.

Chairman Grassley is simply following the Biden-Kennedy Rule regarding blue slips in the Senate Judiciary Committee. Chairman Grassley explained:

The treatment of blue slips as advisory is a bipartisan tradition. In 1978, Eastland’s successor, Sen. Ted Kennedy (D-Mass.), clarified that a negative or unreturned blue slip would not necessarily block Committee proceedings. Sen. Strom Thurmond (R-S.C.) continued this policy, as did Sens. Joe Biden (D-Del.) and Orrin Hatch (R-Utah).

Chairman Grassley reiterated this point during Judge Michael Brennan's confirmation hearing for a Seventh Circuit judicial vacancy three weeks ago:

Senator Ron Johnson returned his blue slip for Mr. Brennan. Senator Tammy Baldwin declined to return hers. I’ve nevertheless concluded that Mr. Brennan should receive a hearing . . . After reviewing the record, it’s clear the White House adequately consulted with Senator Baldwin regarding the nomination. In addition to Mr. Brennan, the White House also considered two candidates Senator Baldwin suggested. Senator Baldwin expressed to me that she’s frustrated by the state of Wisconsin’s judicial nominating commission, which has been dysfunctional and unable to recommend candidates for judicial vacancies. While I sympathize with this concern, the commission’s current shortcomings can’t be allowed to impede the President’s constitutional duty to appoint federal judges.

Senate Democrats, however, seek to continuously obstruct any efforts made by President Trump and Republicans by using any and all means. Ranking Member Dianne Feinstein stated [around the 20-minute mark]:

I really object to this . . . Senator [Baldwin] has come in and spoken with me…she feel grievously injured by this [holding a hearing without a blue slip returned]. She has worked with . . . a fine screening commission. And is deeply concerned this has happened . . .

In addition to raising the blue slip, Ranking Member Dianne Feinstein also attempted to allude to some gender bias, too, as she closed:

I find it really very hard — and particularly for a woman senator who has tried so hard, who has worked with her state commission — for her view to be rebuffed in this manner.

When asked about this comment, Ranking Member Feinstein's office did not comment further.

Nonetheless, Judge Brennan, who has garnered bipartisan support and is ABA-rated as "well-qualified," was voted out of the Senate Judiciary Committee with a vote of 11-10, sadly along partisan lines with Senate Democrats crying foul over a blue slip "rule" that does not exist.

Currently, Judge Brennan's nomination is pending on the Senate Floor, where he faces a full Senate confirmation vote. We thank Chairman Grassley for his leadership in the Senate Judiciary and work to hold hearings for President Trump's well qualified judicial nominees. 

Chairman Grassley Has Not Done Away with Blue Slips, But Won't Let Democrats Play Politics with Judicial Nominations

During today's Senate Judiciary Committee hearing for Michael Brennan, nominated for the Seventh Circuit Court of Appeals, the Democrats objected to Chairman Grassley holding a hearing for Judge Brennan even though Senator Tammy Baldwin of Wisconsin did not return her blue slip.  There were even protesters in the gallery in blue shirts (part of an ongoing protest by the Center for American Progress and People for the American Way) and predictable gender-baiting by Democrats simply because Sen. Baldwin happens to be female.  

But as Chairman Grassley pointed out in his opening statement, the consultation purpose of the blue slip has been fulfilled:

As I’ve explained, a negative or unreturned blue slip won’t necessarily prevent a Circuit Court nominee from receiving a hearing, unless the White House failed to consult with home-state senators before choosing the nominee.  

After reviewing the record, it’s clear the White House adequately consulted with Senator Baldwin regarding the nomination. In addition to Mr. Brennan, the White House also considered two candidates Senator Baldwin suggested.  

Senator Baldwin expressed to me that she’s frustrated by the state of Wisconsin’s judicial nominating commission, which has been dysfunctional and unable to recommend candidates for judicial vacancies. While I sympathize with this concern, the commission’s current shortcomings can’t be allowed to impede the President’s constitutional duty to appoint federal judges.  

I’ll also note that [Republican] Senator Johnson returned his blue slip for President Obama’s most recent nominee for this seat last Congress, even though the commission had also failed to act in accordance with its charter in that situation. I held a hearing for this nominee, and he was voted out of the Committee. 

The Wisconsin judicial nominating commission is composed of six members, three from each party, and the support of five members is required for a judicial candidate to receive the commission's approval.  Sen. Baldwin's reliance on the "dysfunctional" commission's approval in this case is inconsistent with her actions on this vacancy while President Obama was in office.  Then, Sen. Baldwin submitted all eight potential nominees the commission had evaluated to President Obama for consideration.  Only two of those nominees had received the supposedly “required” five votes.  Apparently for Sen. Baldwin, the commission's approval is only important when there is a Republican in the White House.  As Chairman Grassley pointed out, Judge Brennan was the only candidate reviewed by the commission since President Trump took office who received any bipartisan support.

As Chairman Grassley responded to Senator Sheldon Whitehouse complaining about his doing away with the blue slip policy, he is not doing away with blue slips (starting at 1:53:36).  The role of blue slips is the prerogative of the Senate Judiciary Committee Chair, and he is keeping them as a way of ensuring consultation with home state senators by the White House.  However, he pointed out that there will be exceptions, such as when the nominee is for a circuit court vacancy, the White House consulted with the home state senators, and a senator has stated politically motivated reasons for not returning the blue slip.  Chairman Grassley is not going to allow Democratic senators, determined to cater to their radically liberal base and resist President Trump at every turn, to usurp President Trump's constitutional role of selecting federal judicial nominees. 

WI DOJ Report on Leak and Mishandling of Documents in "John Doe" Investigations

The Wisconsin Department of Justice completed an investigation and report on the 2016 leak of 1500 pages of documents from the so-called "John Doe" investigations, expansive and intrusive investigations into alleged coordination and prohibited political activity by Republicans in Wisconsin.  The Wisconsin Supreme Court eventually held that the activity under investigation was constitutionally protected First Amendment speech and halted the politically motivated investigations that had terrorized conservative citizens of Wisconsin.

The report was released on Tuesday and unsealed by the court yesterday contains details about the gross mishandling of evidence and people's confidential information:

Moreover, DOJ is deeply concerned by what appears to have been the weaponization of GAB [Government Accountability Board] by partisans in furtherance of political goals, which permitted the vast collection of highly personal information from dozens of Wisconsin Republicans without even taking modest steps to secure this information. 

In the following pages, this report will explain how the former GAB never fully divested itself of evidence from the John Doe investigations and how former GAB employees and current employees of the Wisconsin Ethics Commission (Ethics) left sensitive evidence unsecured in the former GAB office space and on former GAB computer systems. This report also describes how DOJ investigators, in searching for the leaked documents, discovered what this report calls “John Doe III,” a previously unknown and secret investigation into a broad range of Wisconsin Republicans. John Doe III reached far beyond John Doe II’s original (and unsubstantiated) allegation centering on unlawful “coordination” during Governor Walker’s 2010 election and 2012 recall election. As explained more thoroughly below, this secret investigation collected hundreds of thousands of private emails from dozens of Wisconsin Republicans (and at least two national conservative leaders, Ed Gillespie and Leonard Leo). In searching for the leaked documents and the leaker, DOJ investigators found over 500,000 of these John Doe III emails in the basement of the former GAB in two unsecured boxes labeled “Shane Falk.” Moreover, for reasons that perhaps may never be fully explained, GAB obtained and then held thousands of private emails from Wisconsin Republicans in several folders on their servers marked “Opposition Research.”

The 88-page report details the misdeeds of the Government Accountability Board (GAB), now reorganized as the Wisconsin Ethics Commission, employees and investigators, some of whom are attorneys.  Because the documents and sensitive personal information were unsecured, Attorney General Brad Schimel concludes that no criminal charges can be filed for the leak as it is nearly impossible to identify the leaker.  But he did make the following disturbing findings:

• The Leak Was A Crime 
• The Motivation Of The Leaker Was To Influence The U.S. Supreme Court 
• The Leak Did Not Come From The Wisconsin Courts 
• The Leak Did Not Originate From Any District Attorney’s Office Or Francis Schmitz
• The Leak Originated From The Former GAB
• The Partisan Atmosphere At GAB Contributed To The Leak 
• GAB’s Mishandling Of Evidence Created The Opportunity For The Leak Of Records 
• Members Of The Prosecution Team Still May Not Have Fully Divested Themselves Of All Records Relating The John Doe Investigation 

Attorney General Schimel also recommends disciplinary proceedings and contempt proceedings against nine persons for repeated violations of court orders.

While this is some level of vindication for the Wisconsin citizens whose free speech rights were violated and a step in the right direction, it is also a chilling reminder of how liberals are willing to use the power of government to suppress the speech of their political opponents and are shockingly careless about the people whose lives they are disturbing and ruining.

John Ryder on Whitford: Plaintiffs Ask Courts to Make Political Judgments

RNLA Co-Chair John Ryder wrote a post-oral argument summary of the issues in Gill v. Whitford, the Wisconsin political gerrymandering case, in the Daily Caller today.  He outlined how the Plaintiffs challenging the district boundaries in Wisconsin would like courts to make political judgments far outside a proper judicial role that would completely change how districts and representation are viewed:

Beyond the technical legal arguments lies a couple of policy issues that the court is being asked to address.  First, the consequence of accepting the Plaintiffs’ arguments would be to convert representation from a district-based representational theory to one of proportional representation on a state-wide basis.  No longer would state legislative members represent specific districts so much as they would be assigned to represent the collective interest of “Democrats” or “Republicans” in proportions determined by a court. 

The concern expressed repeatedly by Chief Justice John Roberts is the substitution of the judgment of the courts for the judgment of elected representatives of the people.  Under the Plaintiffs’ theory, any voter, anywhere in any state, could complain that his or her vote was diminished by not being granted the right to be counted proportionally with other like-minded voters in the state to elect a proportional number within the legislature.  No longer is the challenge limited to district-specific claims of vote dilution. 

As Mr. Ryder points out, Chief Justice Roberts questioned the serious danger for the proper role of the courts posed by the Plaintiffs' theories during oral argument:

[I]f the claim is allowed to proceed, there will naturally be a lot of those claims around the country. . . . We will have to decide in every case whether the Democrats win or the Republicans win. . . . And that is going to cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country. . . . [T]he whole point is you're taking these issues away from democracy and you're throwing them into the courts pursuant to . . . sociological gobbledygook.

 The Chief Justice was not alone in his criticism:

Justice Neil Gorsuch noted that such a theory would result in the litigation of “every district and every case and every election.” . . . Once the process begins, it will then be up to the courts to determine the appropriate standard or formula by which to judge the partisan gerrymander; then, the court must determine what the right balance in that legislature should be.  It turns judges into arbiters of some Platonic ideal of fair representation.  That in turn requires the judges determine what balance is fair today, what the predilections of the voters will be tomorrow, and how to draw districts which reflect the fair balance as applied to those predilections. . . .

We hope that the Supreme Court will not take the bait and drastically expand the role of the courts into making political judgments and predictions that even professional political scientists would struggle to make.  As Mr. Ryder concluded:

In the end, the Plaintiffs are asking the courts to undertake the impossible task of predicting political behavior in an increasingly volatile electorate and at the same time to determine what is the “right” political balance and then to design a system which will achieve that precise balance.

Efficiency Gap Methodology in WI Redistricting Case Deeply Flawed

NRCC General Counsel and RNLA member Chris Winkelman and Holtzman Vogel Josefiak Torchinsky PLLC attorney Phil Gordon wrote about the serious problems with the efficiency gap analysis used by the lower court in Gill v. Whitford, which the Supreme Court will hear next term (internal headings omitted):

Just when plaintiffs, distraught that their failures at the ballot box cannot be saved by wins in the courtroom, had given up hope of ever finding a standard that would meet with the approval of five justices, come the plaintiffs in this case with a “scientific” method of determining impermissible partisan gerrymandering: the so-called “efficiency gap.” . . . The efficiency gap counts any vote as wasted if that vote was for a losing candidate or was more than what the prevailing candidate needed to win a given election (i.e., 50 percent of the vote plus one in a two-party election). These supposedly wasted votes are then divided by the total number of votes in an election, and the resulting number is the misleadingly named efficiency gap. However, even a cursory inspection of this so-called methodology reveals analytical flaws and partisan skullduggery too blatant to pass constitutional muster or stand up to common sense. 

A fundamental problem with the efficiency gap is that it treats voters as monolithic blocs who vote party above all else. This assumption is contrary to reality. The efficiency gap, much like most statistical election models, attempts to predict the future. The efficiency gap is particularly bad at predicting the future because it relies on the results of a single statewide election for its calculation, aggregating a series of district-by-district elections. As recent elections have laid bare, the assertions that voters 1) will never change their mind, and 2) vote for the party only and not the candidate, are not supported by actual election outcomes. The efficiency gap does not account for vote switchers or split-ballot voting. In fact, the authors of the efficiency gap state that a gap of eight percent ought to be sufficient to render a legislative reapportionment a justiciable partisan gerrymander. . . . 

The efficiency gap is mired in a plethora of problems, both methodological and quantitative. There is not nearly enough time or space to fully document them all here. The biggest single problem with the efficiency gap is that it assumes that political populations are relatively evenly dispersed geographically. Scientific literature and common-sense experience do not support that assumption. Currently, Democrats in the United States are mostly clustered in urban areas, while Republicans tend to inhabit more suburban and rural areas. . . . This asymmetrical grouping of voters has real-world consequences on attempts to form legislative districts using traditional districting criteria (compactness, contiguity, equal population etc.). Traditional districting criteria exist, at least in part, to give courts and map makers some guidelines for evaluating maps to ensure compliance with the equal protection clause of the Constitution. Given the focus that the Supreme Court has placed on the shapes of districts, the lower court could be forgiven for rejecting the challenged maps in Wisconsin’s Act 43 if the shapes of the district boundaries were particularly egregious. They were not. The plaintiffs in this case even conceded that the challenged districts were relatively compact and contiguous and that they met the requirements of “one-person one-vote.” . . . However, the two-judge district court majority, in a novel approach, eschewed traditional districting criteria in favor of the efficiency-gap test in order to rule that Republicans had given themselves an overwhelming unconstitutional electoral advantage over the life of Act 43. 

The district court ignored the actual impact that its decision will have. Compactness, as Kennedy said in Vieth, helps Republicans because of the effect of political geography. In order to comply with this new efficiency-gap standard, the Wisconsin General Assembly would have to create maps that are less compact and contiguous. The Supreme Court has long lamented the snakes, “sacred Mayan bird[s],” “Rorschach ink-blot test[s]” and “uncouth twenty-eight-sided figure[s]” that creative cartographers have made into legislative districts. Yet, in this case, the challengers are asking the court to force state legislatures across the country to fix the Democrats’ political geography problem by ignoring years of precedent to make less compact and contiguous maps. The court should roundly reject this invitation.

The NRCC's amicus brief in Gill v. Whitford fully analyzes the practical problems with the efficiency gap analysis and outlines how the plaintiff's methodology, adopted by the district court, violates established Supreme Court case law on redistricting.  We will follow interesting developments in Gill v. Whitford as it goes to argument next term.

CPAC - Holding Their Feet to the Fire

On the first day of CPAC 2017 the RNLA Wisconsin Chapter Chair, Jake Curtis, gave a speech to a small crowd on how best to continue the conservative agenda that has been reinvigorated after the election cycle.

In a speech entitled “Hold Their Feet to the Fire: Holding Elected Officials Accountable,” Jake conveyed basic methods and concepts to help grassroots activists better participate in the political system and interact with elected officials. The casual talk explained how to interact with elected officials at all levels to move an agenda, but the majority of his talk pertained to those politicians at the local and state levels.

Much of the time allotted was spent explaining how to organize and present oneself as a subject matter expert to elected officials and how to present conservative ideas in a manner that places the activist in the shoes of the elected official. He suggested that individuals do the following:

• Forecast future problems 

• Understand the options that the politician has 

• Do the politician's homework for him or her 

• Be concise 

• Never lie or misrepresent the truth or position

He also explained that the best way help an issue is to create relationships with the politicians that are relevant to your issue area, by being aware of who is on which committee and their relevant chair positions. 

Beyond that, he suggests that the best way to gain attention is to hold events that would attract elected officials and make them look good in the process. Events such as award and ribbon cutting ceremonies are events that can bring attention to common agendas. Events like these not only garner favor but also allow elected officials to gain political capital in the community, give activists and their ideas face time with the politician, and allow the politician to see those involved as assets.

Status of Voter ID Laws after 2016

2016 was a remarkable year in many ways, not least of which was the number of court decisions on voter ID laws.  What is the state of the law on the validity of voter ID requirements after 2016?:

Rule One: Voter ID, by itself, is presumptively valid. In the immediate post-HAVA era, new photo ID laws were seen as a threat and drew litigation challenges accordingly. Over time, however, courts – including the U.S. Supreme Court in the 2008 Crawford case – came to accept voter ID and uphold it against what lawyers call “facial” challenges; i.e., challenges to its mere existence. More specifically, courts are accepting states’ proffered justifications of fraud prevention and are finding that ID laws, by themselves, are not an undue burden on voters. In 2017 and beyond, therefore, any plaintiff challenging a new or existing voter ID law will have to do more than simply allege discrimination and/or limitation of voting rights to prevail. 

Rule Two: legislative intent behind voter ID matters. That said, general judicial acceptance of voter ID laws erodes quickly if there is evidence of actual discriminatory intent behind their enactment. In 2016, federal appeals courts blocked election laws in Texas and North Carolina because of evidence that legislators in both states had consulted, and may have relied upon, data suggesting those laws would disproportionately affect protected minorities under the Voting Rights Act. Going forward, any legislature seeking to enact or expand voter ID laws will be closely scrutinized to ensure that similar discriminatory intent is not motivating those laws. Note, however, that plaintiffs challenging such laws may no longer be able to count on support from the U.S. Department of Justice under the new Administration. 

Rule Three: whether and how voters without ID can get it is crucial. While facial challenges to voter ID laws are likely to fail, recent experience suggests that an “as-applied” challenge focused on the implementation of these laws has more likelihood of success. State and federal courts have been very clear that voter ID requirements begin to lose their presumption of validity when evidence suggests that voters without ID can’t actually get it. These fights can be intensely detailed; in Wisconsin, courts temporarily halted implementation of ID laws because of deficiencies at the state DMV in training staff to assist voters with obtaining ID, and in Texas the instructions to poll workers about what kind of ID could be required were subjected to direct oversight by the court. In this environment, the voter ID fight isn’t about sweeping legal issues but rather the nitty-gritty of implementation. 

What does this mean for voter ID going forward? I think it’s pretty straightforward: legislatures are likely free to enact such laws if they have the votes, but there must be no evidence of discriminatory intent and implementation matters; in other words, it isn’t enough to simply say voters will be allowed to get free IDs – there has to be an actual plan. In this environment, theoretical legal arguments about the constitutionality of ID laws are most powerful during legislative debate but are unlikely to succeed in court. The real fight is over intent and what happens after enactment. Proponents and opponents alike would be well-advised to put less emphasis on legal research and more on data gathering.

We are hopeful that some of the bad decisions on voter ID will be overturned in 2017.  Here are some of the notable voter ID stories from 2016:

• Fourth Circuit upheld Virginia's voter ID law
• Missouri voters passed a constitutional amendment allowing the state to require photo voter ID with 63% voting in favor
• Fourth Circuit struck down North Carolina's voter ID law; appeal to the Supreme Court is likely
• Fifth Circuit required Texas to modify its voter ID law; petition for writ of certiorari pending at the Supreme Court
• Multiple challenges to Wisconsin's voter ID law are ongoing
• A study exposed the inflated, faulty statistics repeatedly cited by voter ID opponents

Wisconsin Voter ID Law Back In Court

On the last day of testimony in the trial in the renewed, as-applied challenge to Wisconsin's voter ID law, U.S. District Judge James Peterson made clear that he believes that the case will be appealed regardless of his ultimate decision. Still, Peterson has already announced that the law will remain in place through the August elections and noted that he hopes to make a ruling “by the end of July”. Here is an overview of the arguments and expert witnesses involved in the recent Wisconsin Voter ID case.

The turnout in [the April] election — the state's highest in a presidential primary since 1972 — is a central part of the state's case. Lawyers for the state have frequently noted the increased turnout in elections that have occurred since the state's voter ID law was passed in 2011 and emphasized that the DMV provides free IDs to those who need them.

Both sides have expert witnesses on their lists to help bolster their arguments — and attempt to discredit the expert witnesses whose reports conflict with their stance. 

The State is using two high-profile experts in M.V. Hood III, a Professor of Political Science at the University of Georgia, and Nolan McCarty, a Susan Dod Brown Professor of Politics and Public Affairs at Princeton University. The conclusions of the defense’s experts include:

M.V. Hood III:

     

"…Wisconsin’s election code provides a reasonable and common sense approach to the manner in which elections are conducted in the state. Further, Wisconsin has acted to continue to make elections more manageable, fair, and efficient (i.e. standardization for in person absentee voting days and hours). As well, the electoral climate in the state can be characterized as extremely positive as evidenced by the fact that in three of the last four federal election cycles Wisconsin recorded the second highest voter turnout rate in the country."

"The recent changes to in-person absentee voting in Wisconsin represent a means by which voter convenience can be balanced against the cost, both literal and administrative, for providing this service."

"…the rate at which absentee ballots have been rejected has fallen, not risen, over the last two federal election cycles. My examination of Wisconsin’s registration process involving the end of corroboration determined that this change instituted a fair and consistent standard for all electors in the state. Finally, increasing the residency requirement to 28 days places Wisconsin firmly in line with other states that have similar requirements."

"…there appears to be more than ample opportunity, time, and convenience for voters to accomplish this duty (of voting) in the State of Wisconsin."

"I can think of no reason that would lead me believe that the changes undertaken to Wisconsin’s election code under challenge in this case have, or will have, a detrimental impact on the ability of Wisconsin voters to cast a ballot, including minority voters."

Nolan McCarty:

"Clearly, I believe that there are many reasons to doubt (Kenneth Mayer's) conclusions. First, rather than observing a 'significantly lowered … probability that a voter [could] cast a ballot in 2014,' I documented that turnout increased markedly from 2010 to 2014 for racial minorities as well as for whites. In proportional terms (measured by the odds ratio), the turnout increases among the registered and citizen voting age population were at least as large for African-Americans as they were for whites."

"The findings suggesting the absence or smaller effects on racial minorities, students, young voters, and those without ID may largely be attributable to a variety of attrition biases, measurement error, and misinterpreted findings."

"…I find little evidence that the changes in Wisconsin electoral law had any significant partisan effect. The 2014 gubernatorial election was almost an exact replay of 2010 both in terms of vote shares and turnout at the municipal level. Nor did I find evidence that changes to absentee balloting reduced its usage by any racial or ethnic group."

Liberal’s and the left continue to attack the common sense voter ID regulations across the country, more often than not using the same illogical arguments over and over again unsuccessfully. Most recently courts have upheld state laws in the landmark voter ID cases in Virginia and North Carolina. At some point, the left must realize that election integrity is a crucial piece of the voting process and it is necessary to encourage voter involvement in elections. This should not come as a surprise to many as several polls have shown a great deal of public support for the laws.  

300,000 Lies on Voter ID by the Far Left Media; Actual Disenfranchised Voters Ignored

The far left vote fraud deniers and "disenfranchisers" went into Wisconsin Tuesday with a mission to “prove voter ID disenfranchises."  

It started before the election with the use of the discredited statistic that 300,000 people could be disenfranchised.  This number is a complete fabrication and everyone who is remotely honest or informed on the topic knows it.  Yet, when confronted, Democrat Operative and MSNBC Blogger Zach Roth admits the number is wrong but states: “So who cares?”

Then we get to the actual stories, my favorite is the Huffington Post. This story is quite frankly absurd because it is following people who do not want to vote. Take the story of Kari Venteris:

Election Protection advised her to go to her polling place anyway, so she did: there, she registered to vote using her Illinois license. A poll worker gave her a slip to get a regular ballot, but she knew submitting a regular ballot, rather than a provisional ballot, would be illegal under Wisconsin law.

So she had a chance to vote and did not, because she wanted to be part of a story.  Ms. Venteris is part of a trend of liberal examples: they all can obtain IDs but don’t want to do so.  A couple other ones:

In the midst of an appeal on the Pennsylvania Voter ID, the named plaintiff Vivettte Applewhite “received the state-issued photo ID card necessary to vote, despite saying she’d been rejected for years because she lacked appropriate documentation to receive the card.”

Of course her case is nothing compared to one of the examples used by the left in the Supreme Court case on Voter ID:

The problem of possible double voting by someone who is registered in two states is illustrated by one of the Indiana voters highlighted by the League of Women Voters in their Crawford v. Marion County Election Board amicus brief. This voter was used by the league as an example of someone who had difficulty voting because of the voter ID requirement. However, after an Indiana newspaper interviewed this voter, it turned out that the problems she encountered stemmed from her trying to use a Florida driver’s license to vote in Indiana. Not only did she have a Florida driver’s license, but she was also registered to vote in Florida where she owned a second home. In fact, she had claimed residency in Florida by filing for a homestead exemption on her property taxes, which is normally only available to individuals who claim residency in a state. So the Indiana law worked as intended: It prevented someone from illegally voting twice.

Here is the thing: all the actual people mentioned in the Huffington Post story could vote if they wanted to and all did vote provisionally.  If the Left cared about them and their votes, they would help get them IDs instead of trying to make them examples. 

The Huffington Post repeats the 300,000 lie but actually cites three people who voted provisionally and could have their votes counted if they wanted to do so. 

Shame on the far left in the media for using people.  But what does the far left care, Democrat Bernie Sanders keeps winning states (Wisconsin by 13%) and losing the Democrat nomination because of the delegate rules .  Whether it is vote fraud or Democrat Party rules, the far left in the media does not care about real voter disenfranchisement.

Left Cites Discredited, Inflated Statistics to Opposed Voter ID in Wisconsin

Wisconsin holds its presidential primary today, the first major election under its voter ID law.  The media and voter ID opponents continue to claim that 300,000 Wisconsin citizens lack the identification required to vote.  This is the number the district court relied upon to strike down the law in 2014.  What the media and voter ID opponents overlook, however, is that the 7th Circuit called that figure “questionable” because it both overestimated the number of citizens without a DMV-issued ID and overlooked other forms of ID acceptable under the law.  

As Don Palmer noted in his study of reliance on faulty, overstated numbers in challenges to voter ID laws:

The Wisconsin district court opinion is perhaps the most egregious example of a court’s failing to engage in meaningful data analysis of the number of voters who lack a driver’s license or DMV ID card but who may have one of the other photo IDs permitted under a voter ID law. Even a cursory examination would have revealed that a much larger number of Wisconsin voters (almost 1.5 million) possess non-DMV IDs that are valid for voting, including passports, Indian Tribe ID cards,naturalization certificates, and military or reserve military ID cards. 

The Seventh Circuit Court of Appeals reversed the district court. In that opinion, Judge Frank Easterbrook criticized the district court’s conclusions as to the supposedly large number of individuals without ID as “questionable.” He added that registered voters without a valid ID were not “disenfranchised,” as claimed by the trial court, and that the total number of voters without a valid ID is not the appropriate measure of the law’s validity anyway.

Even if it were correct in 2014 (which it was not), the 300,000 figure additionally fails to account for anyone who has obtained an ID in the two years since that figure was calculated.  Instead of engaging in a fact-based discussion of how to protect the integrity of elections, the media and the left continually cite the discredited 300,000 figure to claim that Wisconsin’s voter ID law disenfranchises voters. 

Hillary Clinton's Wisconsin Speech, Part 1: Hypocritical Attack on Citizens United

Among other things, Hillary Clinton discussed using a litmus test for potential Supreme Court justices during a visit to Madison, Wisconsin, yesterday. We addressed a similar issue some time ago coming from another Democrat, Bernie Sanders.

Hillary made several comments about election law during her speech, echoing the earlier comments from Sanders on current election law:

A lot of Americans are concerned about money in politics, and rightly so. It’s a serious problem that we have to address.  

But Supreme Court justices are appointed for life.  They’re not making decisions based on campaign contributions . . . . And consider, if you will, the dangerous turn the Court has taken in recent years toward protecting the rights of corporations over those of people. 

Now you may have heard of the case Citizens United.  The Court ruled that corporations have an unfettered right to free speech, just like you and me.  That means no limit on what corporations can spend independently to influence elections.  And – big surprise – a flood of money from rich people, corporations and special interests has poured into our politics.  

Citizens United opened the door to the creation of Super-PACs and between the 2008 and 2012 presidential elections, spending by outside groups tripled.  In 2014, the top 100 donors to super PACs spent nearly as much as all 4-million-750-thousand small donors in the country combined.  

Now the idea, I believe, that money is speech turns our Constitution upside down.  Wealth should not be privileged in the courts – in fact, it should have no privilege.  Yet at a time when inequality between working Americans and those at the top is starker than ever, the Supreme Court has given the wealthiest Americans even greater power to affect what happens in our democracy.  

. . . If the Court doesn’t overturn Citizens United, I will fight for a Constitutional amendment to limit the influence of money in elections.  It is dangerous to our country and poisonous to our politics. 

Hillary seems exceptionally concerned about super PACs. Yet the super PAC supporting her is leading the fundraising race of the super PACs supporting all candidates remaining in the field. She is benefitting from the corporate spending and speech that she rails against.

As we have detailed regarding Clinton's calls for a constitutional amendment to overturn Citizens United in the past, scholars on the right and left agree that such an amendment would have disastrous effects on the right to free speech and protect the power of the political establishment against the voice of ordinary citizens.

The assertions in the statement above speak to Clinton's misunderstanding of the importance of free speech, the nature of the political system, and the purpose and power of the Judicial Branch, especially given the clearly articulated ABA Rules of Judicial Conduct. On one hand Clinton argues that the Court has a great deal of impact and should be respected; on the other she states that it’s irrelevant and she will work to amend the constitution should the Court decide contrary to her assessment of Citizens United. 

Voter Turnout Improves with Wisconsin Voter ID Law; Law Still Challenged by the Left

Wisconsin’s voter ID law is still being attacked by the left despite the Supreme Court allowing the 7th Circuit decision upholding the law to stand.  Wisconsin columnist Christian Schnieder took a good look at the reality of the impact of the law on voters during its first test last month.

[I]f voter ID was intended as a voter suppression tool, it has failed miserably.  In [Tuesday, February 16th's,] spring primary elections – elections that the Journal Sentinel called a “test” for the new voter ID law - voting spiked sharply.  Further, as of Tuesday night, no reports had surfaced of people not being able to vote because they lacked proper identification.  

In Tuesday’s statewide Supreme Court justice primary, turnout increased 55% over the last contested Supreme Court spring primary.  In 2013, statewide voter turnout was 363,675; on Tuesday, over 563,386 voters cast ballots.  Even in the 2011 Supreme Court primary, held just days after the Act 10 drama began, only 420,110 citizens voted.  

Voter turnout numbers have substantially increased since the implementation of the law and are therefore having the complete opposite effect of what current voter ID opponents allege.

And it’s not as if the increase was due to white, rural voters turning out in droves.  Turnout nearly doubled in the City of Milwaukee, where 60% of Wisconsin’s African-American residents live.  

[. . .] This should come as a surprise to no one.  In both Indiana and Georgia – states that had recently passed voter ID laws – African-American voting actually increased after the laws went into effect.  So on Tuesday, given all the dire predictions of vote “suppression” we’ve heard for years, let’s hope the law’s opponents were properly equipped with egg-resistant face protection.   

At some point, the growing mounds of evidence that voters are not disenfranchised by voter ID laws will have to drown out the continued assertions to the contrary. Elections in voter ID states continue to see record-breaking turnouts. The groundless claims perpetually asserted by the left will eventually fall on deaf ears as citizens realize the truth about voter ID laws -- that they protect the integrity of elections without disenfranchising or discouraging voters.

My "Life Experiences" Made Me Vote Five Times

A man who voted as many as five times in an election, Robert D.Monroe, is attempting a unique defense for his likely crime.

Monroe, an insurance professional from Shorewood, may face a real challenge in convincing a judge that his mental condition was to blame for him voting illegally in five elections over the course of two years.

 Monroe 51, was originally charged in 2014 with 13 felony counts and pleaded no contest Monday to six of them.  Each is punishable by up to 18 months in prison.

Monroe blamed the double, and once quintuple, votes in 2011 and 2012 on fugue states, or periods of disassociative disorder. He blamed his disorder on a long series of life events, from watching his father have a heart attack at age 8 and surviving a serious car crash in high school, to witnessing sexual misconduct by a priest in college and the fallout of his brother's murder in 2000.

Mr. Monroe’s vote fraud was only discovered due to his blatant and repeated offenses. Unfortunately all of his illegal votes were counted and as result a number of voters were disenfranchised. Monroe’s case shows the ease with which vote fraud can be committed in a same day registration state such as Wisconsin.

Voter ID Victory in Wisconsin

Noel Johnson, an attorney at the Public Interest Legal Foundation, recently wrote a piece outlining the numerous failures of the ACLU and other anti-voter ID parties in Wisconsin. Beginning with the 7th Circuit's determination that Wisconsin's voter ID law violates neither the constitution nor the Federal Voting Rights Act, voter ID opponents in Wisconsin have continued to "strike out."

The most recent blow came as Judge Adelman, a Clinton appointee and the judge who originally invalidated Wisconsin's voter ID law, refused to expand the law on remand from the 7th Circuit. The ACLU brought in a number of witnesses and attempted to argue that Wisconsin's refusal to allow the use of some student IDs, VA veteran ID cards, and various other forms of ID violated the equal protection clause.

Judge Adelman ruled that to expand the law would create the unreasonable burden of "requir[ing] the state to update the existing voter ID law every time a new ID is found to be an acceptable form." A few of the ACLU's witnesses argued that certain IDs in their possession should be deemed acceptable for voting despite the fact that they were already in possession of U.S. passports which satisfy the law's requirements. As a result of the ACLU's weak arguments, Judge Adelman ruled that the plaintiffs had failed to convince him that there was a large number of people who did not possess qualifying IDs and could not obtain one.

In spite of their loss, the ACLU claims that they will try again. However given their record, it doesn't appear voter ID proponents in Wisconsin have much cause for concern.


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