WI Supremes Decline to Hear Appeals on Photo ID Law

On Monday, the Wisconsin Supreme Court issued two one-sentence orders declining to hear both appeals filed by Republican state Attorney General J.B. Van Hollen in two different polling place Photo ID cases. In both, judges in lower courts had blocked the controversial voting rights restrictions passed by Republicans last year, finding that the law violated the state Constitution's guaranteed right to vote.

Republicans had hoped to overturn the temporary injunction placed on the law by Dane County Circuit David Judge Flanagan in Milwaukee Branch of the NAACP v. Walker and the permanent injunction issued by Dane County Circuit Judge Richard Neiss a week later in League of Women Voters of Wisconsin Education Network, Inc. v. Walker.

The issue of a permanent injunction in the NAACP case is being heard this week in Judge Flanagan's court. The evidence included the videotaped testimony of 84-year old, home-born Ruthelle Frank, an elected member of the Brokaw Village Board who has voted in every election since 1948. Frank now faces disenfranchisement because her lack of a birth certificate prevents her from obtaining one of the "free" photo ID forms needed to cast a vote under the now enjoined law, unless she is willing to spend more than $200 for both a birth certificate and the necessary changes to state birth records to correct typos on her name in the state registry.

Van Hollen, whose office said it was "surprised and disappointed" by the Supreme Court's decision, had sought an immediate stay of the injunctions on the grounds of perceived irreparable harm if the upcoming recall elections were conducted without his party's new, draconian Photo ID restrictions in place.

The WI Supreme Court decision this week coincides with an announcement by the American Legislative Exchange Council (ALEC), in response to "a massive corporate exodus," that it is abandoning its effort to see that state legislatures pass its "model" polling place photo ID restrictions...

As we reported on March 17, WI's Second District Court of Appeal, located in conservative Waukesha County, refused to grant Van Hollen's request for an immediate stay of Judge Flanagan's temporary injunction in the NAACP case. The Second District, instead, sent the appeal to the WI Supreme Court. On March 28, WI's Fourth District Court of Appeal issued an order [PDF] which also certified the Republican Attorney General's appeal and motion for an immediate stay of Judge Neiss' permanent injunction in the League of Women Voters case, sending the matter to the state Supreme Court.

This week, the WI Supremes declined to hear both appeals, for now, issuing "two pro-forma orders that were each one sentence long," as described by the Milwaukee Journal Sentinel. "The court does not typically spell out its rationale for refusing to take such cases, and it followed that standard in these cases," the paper reports.

When The BRAD BLOG first covered the League of Women Voter's constitutional challenge, we observed that there was no legitimate legal basis for upholding the GOP-enacted Photo ID statute under the WI Constitution. We argued that the principle obstacle to challenging the law might, instead, come by way of a 4-3 political decision by the WI Supreme Court's right-leaning partisan majority.

As Marquette Univ. Law Prof Edward Fallone notes in the Journal Sentinel, the WI Supreme Court decision suggests that the injunctions are likely to remain in place during the May and June state recall elections. That decision is unlikely to help Walker, his Lt. Gov. Rebecca Kleefisch or the GOP Senators now facing recall elections. Study after study have documented that photo ID laws tend to disproportionately disenfranchise the poor, the elderly, minority and student voters, all of whom tend to lean towards Democrats.

The rulings also suggest that a majority on the WI Supreme Court did not agree with the urgency that underscored the Attorney General's requests to overturn the injunctions, and that this writer may have been wrong about the Court's willingness to elevate politics over the legal voting rights of all eligible WI citizens. That, of course, assumes that the correlation between the WI Supreme Court's refusal to hear these cases at this time and ALEC's announced abandonment of its "model" photo ID legislation is merely coincidental.

"The Supreme Court has been deeply divided in pivotal cases in recent years, with conservatives claiming a 4-3 majority," the Journal Sentinel notes before citing League of Women Voter's attorney Lester Pines who suggests the decisions may indicate the court is not as divided along ideological lines as many have believed.

"What it says is there were not four justices who wanted to take this case up (at this time)," Pines told the paper. "I don't believe the Supreme Court always decides stuff on a four-three basis."

Both cases will now return to the appellate level and could, later on, make their way back to the state Supreme Court once again. For now, however, unless something changes as we head into the recall election months, it looks like all legal voters in Wisconsin may be able to cast their legal vote after all, either for or against Gov. Scott Walker and the other Republican officials whose seats are now on the line.

The 4/18/12 Democracy Now! segment covering ALEC's decision to abandon their push for photo ID, their deadly 'Stand Your Ground' laws, and other "social" issues, follows below...

Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.

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