September 8, 2011

Intriguing Wisconsin legal theory of the day

"We need to ease our litigation burden in this State." — Scott Walker
Attorney Lester Pines said he was concerned about the DMV policy on not telling voters they could get IDs for free. "Potentially there is a legal problem in that it shows the State is interested as a matter of policy in charging for these [IDs], and that would be a poll tax," Pines said. "The agency's policy is to put revenue above protecting the right to vote."
Leave it to Walker to fire one of the smartest lawyers in Wisconsin.
"[W]hen a citizen votes in a judicial election, he or she exercises a right guaranteed under the First Amendment of the United States Constitution." — Wis. S. Ct. Justice Patience Roggensack
Justice Roggensack's claim cannot be repeated often enough.

(Partly because she may eventually be forced to back away from it.)


gnarlytrombone said...

Republican state Rep. Jeff Stone of Greendale, who sponsored the bill, said he had no problem with the department's action and didn't feel it posed any problems for the law's legality.

"We've got a law that's constitutional and I think right now all we have is people trying to create an issue where there isn't one," Stone said.

Well alright, then.

illusory tenant said...

Remember that rubber chicken event where Stone was whooping it up with Charlie Sykes with an inflatable effigy of Chris Abele? Meanwhile Abele was out campaigning and clobbered Stone by 22 points.

gnarlytrombone said...

It's telling that even the more articulate of the WisGOP have given up grounding arguments altogether. All we get are assertions.

IIRC, the only favorable statement in the entire senate floor "debate" on this matter was Frank Lasee's anecdote about ordering pizza.

illusory tenant said...

All we get are assertions.

Because it's unmitigated voter suppression.

gnarlytrombone said...

Krieser, who confirmed the authenticity of the memo, said he was simply trying to make sure DMV employees honored the intent of lawmakers who passed the law

Heh heh heh.

gnarlytrombone said...

And I completely missed that story about the state bar letter last week.

JoeT said...

Why would voting in a judicial election be guaranteed by the First Amendment? Why not the 14th?


illusory tenant said...

Beats me.

illusory tenant said...

(Not to be glib ... I honestly don't know.)

gnarlytrombone said...

Why not the 14th?

Pam Karlan, who was among the lawyers bloodied in the Crawford voter ID case, says you can piece together a negative right - or more aptly, a right to not be selectively disenfranchised - from the 14th, 15th, 19th and 24th and less explicitly in the 17th and Art. I §2.

But she says under present interpretation the gubmint has no affirmative duty to facilitate the franchise, even where common sense would say lack of action is effectively disenfranchisement (like handing a Russian speaker a ballot in English or deploying dysfunctional voting machines).

So under that I suppose Lester would have to show not that the state failed to protect voting rights, but targeted a distinct group of voters.

illusory tenant said...

Thanks. That's similar to my understanding too. If you accept Justice Roggensack's claim (the reasoning for which she didn't provide in the op-ed piece where she stated it) the government's burden becomes substantially more onerous.

gnarlytrombone said...

I don't get Roggensack either, ever. Her line of questioning in Ozanne was just baffling.

Karlan offers one admittedly fanciful but intriguing line of thought that might apply. She argues that under the Due Process Clause, the government is obligated to provide clear notice and not "mere gestures" (Mullane v. Central Hanover Bank and Trust) when it makes obligations of citizens. The government manages to meet this standard with obligations of citizenship like Selective Service and jury duty, she says, so why not voting.