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In Wisconsin, Justice Isn’t Sufficiently Blind



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Remember last year in Wisconsin, when a single Dane County judge overturned Governor Scott Walker’s collective-bargaining law that had passed through both houses of the legislature and been signed by the governor? It was a Madison-area judge whose husband had contributed money to the campaign of Walker’s opponent, and whose son — a union organizer — encouraged people to get this “f***er” out of office. (Judge Maryann Sumi’s order to vacate Walker’s law was later overturned by the state supreme court, a decision which led to allegations of justices choking each other behind the scenes.)

It turns out that Sumi’s laughable decision was just an appetizer, as Dane County judge David Flanagan yesterday issued a temporary injunction to a new law requiring photo identification to vote in Wisconsin. According to a recent statewide poll, 66 percent of Wisconsinites support having to show photo ID at the polls, while 32 percent oppose.

In February, the first round of elections subject to the photo ID law went smoothly; but Flanagan’s order would halt the law for the April round of elections, when not only will Republicans vote for their presidential candidate, but Flanagan himself will stand for election.

Republicans were outraged when they found out that Flanagan had actually signed a petition to recall Governor Scott Walker from office. They argue that Flanagan’s signature constitutes a violation of section 60.06 of the state’s judicial code, which reads:

Except for activities concerning his or her own election, a judge shall not be a member of any political party or participate in its affairs, caucuses, promotions, platforms, endorsements, conventions or activities. A judge shall not make or solicit financial or other contributions in support of its causes or publicly endorse or speak on behalf of its candidates or platforms.

Of course, the current effort to recall Walker from office is purely the work of the state Democratic party, and the GOP argues Flanagan’s signature constitutes an “endorsement” of their effort.

Even more embarrassing is Flanagan’s shoddy opinion, in which he cites United States Supreme Court justice “William” Scalia’s opinion in a case dealing with voter identification from 2008. (No word on what Flanagan thinks about President Ronald Obama.)

In Crawford v. Marion County Election Board (2008), the U.S. Supreme Court upheld a similar voter-identification law in Indiana. Nonetheless, Flanagan says his opinion should effectively trump the Supreme Court because the Indiana law allows a voter ten days after casting a provisional ballot to produce identification, while the Wisconsin law only allows three days for a voter to verify their identification after casting a provisional vote.

Furthermore, Flanagan refers to the wrong section of the Wisconsin Constitution when he tries to explain citizens’ eligibility to vote. (He cites Art. I, Sect. 2 (4), when the relevant provision is found in Article III.) As pointed out by Dan Bice of the Milwaukee Journal Sentinel, “several sentences in the decision are garbled,” rendering them meaningless.

The lawsuit is being driven by many of the same minority groups who complained in Crawford that having to show ID constitutes a “poll tax.” But the Wisconsin bill provides free state identification cards to those who cannot pay for them. There are no issues in the Wisconsin law that are substantively different from those already considered by the U.S. Supreme Court, which makes Flanagan’s injunction all the more absurd.

Eventually, Flanagan’s sloppy decision is going to be overturned, either by an appeals court or the state supreme court (which has now become Wisconsin’s janitor, cleaning up the messes left by lower courts). It just remains to be seen how many elections will pass before the will of the people will be restored.

— Christian Schneider is a senior fellow at the Wisconsin Policy Research Institute and a co-author of the Campaign Manager Survey.



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