A Wisconsin federal judge today struck down as unconstitutional that state’s voter-ID law, ruling that the appearance of voter fraud, just like the appearance of political corruption, can’t justify impeding the First Amendment right to vote.
In a close and insightful reading of Chief Justice Roberts’ opinion in McCutcheon, reproduced here with his permission from the election law listserv, Marty Lederman has called attention to this first paragraph:
“There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options.”
— Former Obama White House Counsel and eminent Washington election-law attorney Bob Bauer, on his blog moresoftmoneyhardlaw.com, Apr. 24
Bauer sums up:
While disclaiming “naiveté” about the Roberts Court’s commitment to the interests of voters, Marty asserts that if “taken seriously,” this freshly minted right to participate could “be the source of a new flourishing of voting rights and other election-related rights.”
Eminent and esteemed though they are, Bauer and Lederman are late to a party. Specifically, my party. On Apr. 3, a day after McCutcheon was issued, I pointed out right here on this popular and acclaimed blog what “the REAL news from the McCutcheon opinion” is:
“There is no right more basic in our democracy than the right to participate in electing our political leaders.” That’s how Roberts began the opinion.
So I guess we can now assume that the Court will strike down all those voter-ID laws that so clearly impact that most basic of rights, and will do so by unanimous vote of the justices.
I waited for others–important folks–to notice that the Court has now, finally, declared without even a dissent from Antonin Scalia (who protests occasionally that the framers of of the Thirteenth Amendment had it wrong), that there is after all a constitutional right to vote, and that this would seem to require . To my surprise, no one else seemed to notice. I guess that everyone just presumed that, while the appearance of political corruption can’t justify campaign-finance laws, the appearance of voter fraud (people in line to vote who look like they’re probably Democrats) can justify whatever voter ID laws Republican statehouses conceive.
Undeterred, two weeks later I suggested here that McCutcheon also appears to render unconstitutional all those state election laws that bar convicted felons from voting. (Most, but not all, states have such a law.) And now, as you see above, important folks are writing about what, theoretically, this could mean for challenges to the constitutionality of voter ID laws.
Well, we still don’t know. But today a federal district judge in Wisconsin struck down that state’s recently enacted voter ID law. The Milwaukee Journal Sentinel is reporting online:
In Tuesday’s decision, [U.S. District Judge Lynn Adelman] in Milwaukee found the state didn’t have an appropriate rationale for imposing a voter ID requirement. In-person voter impersonation — the only type of fraud a voter ID law can prevent — is nonexistent or virtually nonexistent in Wisconsin, he wrote. “Because virtually no voter impersonation occurs in Wisconsin and it is exceedingly unlikely that voter impersonation will become a problem in Wisconsin in the foreseeable future, this particular state interest has very little weight,” he wrote. “The defendants could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past.”
This ruling actually is more attributable to Seventh Circuit Court of Appeals Judge/prolific author Richard Posner, whose court is the one that will hear the appeal in that case, than it is to McCutcheon. That appellate court will affirm the ruling, and would have affirmed it even without the assistance of McCutcheon. I haven’t read the Wisconsin federal district judge’s opinion, and (the title of this post notwithstanding) I don’t actually know whether the opinion relies on McCutcheon and the First Amendment. But in light of McCutcheon, the Supreme Court’s conservative majority will have to redefine a few more common words and phrases and again employ sophistic analogies in order to reverse the appellate ruling and uphold the Wisconsin law. Not that that is beyond them. But it’s likely to be widely noticed if they do.