Monday, March 12, 2012

Lacking argument, Walker calls Judge Niess a "Dane County activist"

Governor fails to make feasible argument regarding content of judge's voter ID decision

A second Wisconsin circuit court judge has ruled the voter ID law passed last year as unconstitutional.

Ruling in favor of the plaintiffs -- the League of Women Voters, a nonpartisan organization -- Judge Richard Niess determined that the voter ID law was in direct conflict (PDF) with the state's constitutional mandates for who is and isn't a qualified voter.
Article III is unambiguous, and means exactly what it says. It creates both necessary and sufficient requirements for qualified voters. Every United States citizen 18 years of age or older who resides in an election district in Wisconsin is a qualified elector in that district...

The government may not disqualify an elector who possesses those qualifications on the grounds that the voter does not satisfy additional statutorily-created qualifications not contained in Article III, such as a photo ID.
Yet the judge's ruling wasn't enough to satisfy Gov. Scott Walker, whose Facebook account (as typed out by his staff members) shows us just why he opposes Niess's judgment:

Within that update, something very obvious is missing: an argument against Niess's ruling based on content. It's easy to argue that a judge's ruling is based on ideology, that some "Dane County liberal" is ruling in a radical way. It'd be more interesting if Walker and his staff were able to look at the ruling and make an argument based on the content within.

Perhaps they attacked Niess's ideological/geographical positioning because they COULDN'T argue against the ruling. The ruling is utilizes a strict constructionist interpretation of law -- a theory of jurisprudence common among conservatives, not liberals, that states that what's read in the Constitution must be what's implemented, nothing more and nothing less.

Article III of the state Constitution specifically states what qualifies an elector and what doesn't. Niess points out that the legislature doesn't have the power to change the qualifications of an elector:
"The elector possessing the qualifications prescribed by the constitution is invested with the constitutional right to vote at any election in this state. These qualifications are explicit, exclusive, and unqualified by any exceptions, provisos or conditions, and the constitution, either directly or by implication, confers no authority upon the legislature to change, impair, add to or abridge them in any respect"
Emphasis added.

That quote, from Niess's opinion released today, isn't his own interpretation of the state Constitution. It's from a ruling made by the State Supreme Court in 1880, 132 years ago.

Niess goes on, in his ruling, to point out that the provisions in the voter ID law in no way stand the scrutiny of the state Constitution's standards:
To be sure, the Wisconsin Constitution empowers the legislature and governor to enact laws regulating elections, both expressly and by implication. The express authority is found in Article III, Section 2 and is limited to (1) defining residency, (2) providing for registration of electors, (3) providing for absentee voting, (4) excluding from the right of suffrage certain convicted felons and adjudicated incompetents/partially incompetents, and (5) extending the right of suffrage to additional classes of persons, subject to ratification by the electorate at a general election.

Act 23’s photo ID requirements do not fall within any of these five categories.
Utilizing stare decisis and a strict interpretation of Article III of the Constitution, Niess exemplifies arguments that are oftentimes made by conservative judges. But Walker's staff fails to point that out, or even argue against those interpretations, opting instead to question Niess's ideological preferences and geographical location.

That argument tends to stand on its head, however, when you take a look at another controversial judgment that Niess has made. In 2008, he upheld the Constitutional amendment to ban same-sex marriages in Wisconsin (and relationships similar to them), despite the fact that amendments must pass one clause at a time (the ban included two separate clauses in one vote).

A Dane County judge who has previously ruled against a hard-line progressive standard is now somehow an "activist Dane County judge" simply because he rules against Scott Walker?

The implication Walker's staff "Facebooked" makes little-to-no sense. Niess's judgment in the case against voter ID is a sound one to make, utilizing arguments that conservatives themselves would have made had they held firm to their beliefs. The Constitution is very clear on this matter: any unnecessary obstruction to a qualified elector's right to vote is undemocratic, and should be stricken from the law within our state's borders.


  1. He didn't mean "common sense", he meant "Tea Bagging Extreme Right Ideology"

  2. But .. that's common sense!

    1. Is this JB, The Chief? Why can't we get into your site anymore?

  3. You're right, Chris. He definitely ought to be making his argument on Facebook instead of in court. Facebook is obviously the right venue. That's often where people go to read and get detailed information on legal arguments rather than simply to get small bits of information. Better to dumb everything down, I suppose.
    Please also understand that voter ID laws have been upheld in other states. This one will survive, too. Whether one agrees with it is irrelevant. The final determination will be that the law is legal and constitutionally sound. This law does nothing to regulate elections themselves, but rather to regulate the proper identification of electors. It protects the concept of one person, one vote.
    Regardless, the conservative Wisconsin supreme court and the U.S. Supreme Court will uphold the law. We all know it. It's time to stop with the time- and money-wasting litigation that will ultimately do nothing to affect the final outcome. Move on. Focus on winning back the legislature and the governorship and proving at the ballot box that the Democrats' will is truly the will of the people.