Scott Walker's sinister "voter ID" lifeline: How a new ruling could save his hide

Voter suppression laws get huge boost from right-wing judges in WI and NC, where hundreds recently disenfranchised

Published September 15, 2014 5:17PM (EDT)

  (AP/Cliff Owen)
(AP/Cliff Owen)

This post originally appeared on The BRAD BLOG.

Wisconsin's Republican Gov. Scott Walker notched a huge victory Friday at the U.S. 7th Circuit Court of Appeals. The ruling could very well result in the controversial Governor's re-election this November --- at the expense of untold thousands of legally registered voters who may now not be able to vote at all this year.

Friday morning, a three-judge panel heard Walker's appeal to the federal ruling that previously struck down his Photo ID voting restriction law. By afternoon, almost immediately following the hearing, the three GOP-appointed federal judges (a Reagan appointee, and two George W. Bush appointees) restored the restrictive voting measure [PDF] in advance of the November general election.

As reported by the Journal Sentinel:

The move by the U.S. 7th Circuit Court of Appeals clears the way for the state to implement the law for the Nov. 4 election, though it does not stop the ongoing appeal over whether the measure is unconstitutional."The state of Wisconsin may, if it wishes (and if it is appropriate under rules of state law), enforce the photo ID requirement in this November's elections," the unsigned two-page order reads.

Even before the ruling came down, reports from the courtroom earlier Friday had suggested that it wasn't looking good for those fighting for voting rights there, and that the judges might even order the previously struck-down law to be implemented before this year's mid-term elections, where Walker faces a neck-and-neck re-election contest with his Democratic opponent, Mary Burke.

Instituting the law at this late date, the plaintiffs argued, would cause extraordinary confusion. "I think it would be extremely irresponsible for a court to do something that would so change the landscape not only for the (state Division of Motor Vehicles) but for election officials," Larry Dupuis, legal director of the American Civil Liberties Union of Wisconsin told the Journal Sentinel after the hearing.

UC Irvine election law professor Rick Hasen noted the same, before the ruling had come down, explaining why it would be "a very bad idea" to implement this law "just before the election."

Making matters worse, and more confusing for voters and elections officials, the WI GOP's Photo ID voting restriction covers absentee ballots as well as polling place voting, unlike most similar laws enacted by Republicans in other states, where only in-person voting is effected. But, according to the Journal-Sentinel (in a report now replaced online by an updated version on the court's late ruling), the fact that thousands of absentee ballots have already gone out to voters this year without an explanation on them that Photo ID needs to be supplied when they are returned, could result in even more disenfranchisement in the Badger State...

[Judge John] Tinder asked if the state was prepared to implement the law for this election, and [Assistant Wisconsin Attorney General Clayton] Kawski said it was. Walker faces Democrat Mary Burke this fall in a race that polls have shown to be statistically tied.According to the state Government Accountability Board, which oversees elections, at least 11,815 absentee ballots have already been mailed, and those did not come with instructions telling voters they might need to provide copies of their IDs. That point did not come up in court Friday.

The AP describes the ruling as "a stunningly fast decision". They then go on to report an inaccuracy asserted by the WI Asst. AG Kawski:

If photo IDs are required for getting...onto a plane, Kawski suggested, they should be required for something far more important --- an election.

If the AP's reporting is accurate, Kawski appears to have lied to the court. Though his claim is often made by Republicans supporting such laws, the fact is that while a state-issued Photo ID may make it easier to get on a commercial plane, in fact, they are not "required for getting on a plane", as the WI Asst. AG asserted, and as the TSA makes clear here.

The Nation's Ari Berman, citing the three Republican judges named to the case, tweeted, prior to the ruling, that this is precisely "why elections matter".

The ruling overturns the decision by U.S. District Court Judge Lynn Adelman which had struck down Wisconsin's "Act 23" in April. At the time, in his landmark federal ruling [PDF], Adelman, a Bill Clinton-appointee, found that some 300,000 registered voters in the state, approximately 9% of all registered voters, lacked the state-issued Photo ID necessary to legally vote under the new statute. That number, he noted, was far larger than the margin of victory enjoyed by Walker and other statewide officials in the 2010 election.

"To put this number in context," Adelman wrote, "in 2010 the race for governor in Wisconsin was decided by 124,638 votes, and the race for United States Senator was decided by 105,041 votes. Thus, the number of registered voters who lack a qualifying ID is large enough to change the outcome of Wisconsin elections."

"The defendants could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past," Adelman documented at the time. "It is absolutely clear that Act 23 will prevent more legitimate votes from being cast than fraudulent votes."

And yet, three GOP-appointed federal judges overturned Adelman's decision, and have allowed the law to take effect before November...unless an en banc appeal is sought and won before the entire 7th Circuit Court of Appeals or, perhaps, even the U.S. Supreme Court.

At the same time, the Republican polling place Photo ID restriction law in Texas is being challenged by a number of plaintiffs, including the U.S. Dept. of Justice, in federal court this week as well. (In that case, the challengers are being heard by an Obama-appointed judge at the U.S. District Court level, for whatever that may or may not be worth.)

In the meantime, we're now finally getting real data on the very real and disenfranchising effect of these types of voter suppression laws in other areas around the country. One such place is North Carolina, where Republicans instituted, hands-down, the most restrictive voter suppression law in the country last year, with absolutely no debate or public comment period, just days after the U.S. Supreme Court gutted the section of the federal Voting Rights Act which would have, most likely, blocked just about every one of this "monster law's" provisions from taking effect.

A George W. Bush appointed District Court judge in that case, recently allowed the law to move forward in the federal challenge to NC's law, pending a full trial on the matter next summer. Unless a currently-pending expedited appeal is successful, the removal of a good portion of the state's early voting period, an end to Election Day registration and a block on the counting of provisional ballots cast in the wrong precinct, among other new restrictions, will all be in effect in NC this November, where Democratic Sen. Kay Hagan faces a very tough re-election contest. (The state's polling place Photo ID restriction will not kick in until 2016 under the law, if it's allowed to stand after next year's full trial.)

Those new voting restrictions were already in place during NC's recent, low-turnout primary in the Spring. And the result, as we are now beginning to learn, was that hundreds of voters simply lost their right to vote in the Tar Heel State during the primary, including Afghanistan War vets, elderly voters, students, and more.

As The Nation's Berman explained earlier this week, voters such as Craig Thomas, a U.S. Army vet who had registered to vote before his overseas deployment to Afghanistan, lost his right to vote during this year's primary, upon his return...

After serving abroad for eighteen months, he went to vote early in the state's primary on April 30. He returned from Afghanistan to the same house, in the same precinct, but was told at the polls that there was "no record of registration" for him.In the past, Thomas could've re-registered during the early voting period and cast a regular ballot under the state's same-day registration system. But same-day registration was one of the key electoral reformseliminated by the North Carolina legislature last year when it passed the nation's most onerous package of voting restrictions. In 2014, Thomas had to cast a provisional ballot, which was not counted. After fighting abroad, he was disenfranchised at home.

"Thomas," says Berman, citing a new report by Democracy NC, "was one of 454 North Carolina voters who would have had their ballots counted in 2012 but did not have them counted in the 2014 primary because of North Carolina's elimination of same-day registration and prohibition on counting a provisional ballot cast in the wrong precinct."

The report continues:

Voters denied a chance to have their voices heard include a veteran returning from Afghanistan whose registration was incorrectly terminated while he was away; a first-time voter who registered at the DMV, but that registration didn't reach the local board of elections; a precinct judge assigned to a precinct other than her own who couldn't leave to vote in her home precinct; a disabled senior who was driven to a friend's polling place on Election Day; a nurse who temporarily registered her car in a nearby county while working at its hospital for nine months; a college student who registered during a voter drive but her application was not recorded; and a new couple in town who mailed in their registration but it did not reach the county board of elections before the registration deadline.

Those, of course, are just some of the disenfranchised voters we have learned about in North Carolina. Undoubtedly there are still many more that we do not know about. If the ruling in WI is allowed to stand, that is likely just a fraction of those who will find themselves without their right to vote this November in WI and other states where Republicans continue to be successful in their campaign to keep certain legally registered voters from being able to cast their legal, democratic vote.

UPDATE: Here's the 7th Circuit panel's 2-page order [PDF] overturning the ruling of District Court Judge Adelman. You'll note that judge's cite new rules ordered implimented by the WI Supreme Court in July which supposedly make it easier to obtain "free" ID. Those rules are now finally posted here at the WI DMV and are set to be "Effective Monday, September 15, 2004", less than a month a half before the November 4th, 2014 general election.

You'll also note that the new requirements include specifically asking for the ID to be supplied for free, and that applicants must "claim that documents required to prove U.S. Citizenship, name and date of birth and/or legal name change are unavailable and require a fee to a government agency to obtain."

After the Wisconsin GOP initially passed the Photo ID voting restriction law in 2011, Scott Walker immediately moved to close as many as 10 DMV offices around the state, "with the department targeting offices for closure in Democratic areas and expanding hours for those in Republican districts."

As to the "simple" process of obtaining one of these "free" IDs, check out what this resident had to go through back in 2011 --- a white woman, with all of the required documentation --- when trying to help her son obtain a "free" ID from the WI DMV at the time.

By Brad Friedman

Investigative journalist and broadcaster Brad Friedman is the creator and publisher of The BRAD Blog. He has contributed to Mother Jones, The Guardian, Truthout, Huffington Post, The Trial Lawyer magazine and Editor & Publisher.

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