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March 29, 2012

Ernest A. Canning on the "War for Wisconsin"

By Joan Brunwasser

Photo ID laws are essentially a solution in search of a problem. The "Big Lie" entails the canard that such laws are needed to prevent "voter fraud."The true purpose of photo ID can be understood only when one comes to appreciate that photo ID laws have a disproportionate adverse impact upon the poor, the elderly, minorities and students, none of whom tend to vote for GOP candidates.


My guest today is Ernest Canning, frequent contributor at The Brad Blog. Welcome to OpEdNews, Ernie. You've been covering what's going on in Wisconsin with the recall of their governor, Scott Walker. Most of our readers are not from Wisconsin. Can you give us a little background before we jump in with the latest developments?

Image crediting created from images table
Image crediting created from images table
(Image by Joan Brunwasser)
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photo courtesy of Ernest A Canning

The recall movement in Wisconsin was triggered when Scott Walker and the GOP legislature in WI, in the wake of the 2010 election, began ramming through ALEC model legislation, including a bid to destroy the effectiveness of WI public unions and vote suppressing, photo ID legislation.

See, Gov. Walker's Wisconsin 'Union Busting' Exposes 'Tea Party' Scam, Duped Americans

That process has been accelerated and complicated by an ongoing criminal investigation that has implicated Walker in alleged political crimes that may have been committed while Gov. Walker served as the Milwaukee County Executive.

Prosecutors May be Closing in on Walker as WI Gov Implicated In Criminal Complaint Against Aides

Originally, it was thought that the Walker folks would nip the recall in the bud by challenging enough of the signatures so that the recall effort would fail, but that didn't happen. How come?

The recall campaign obtained nearly one million signatures, which was nearly double the amount required. The Friends of Scott Walker sought to impede the recall by seeking a court order that shifted the burden of proof for challenging recall signatures from the Walker camp to the state's Government Accountability Office. They initially succeeded at the trial level.

See, 1 Million Recall Signatures vs. 1 Partisan Judge

In that case, a Republican judge in Waukesha not only ignored the language of the controlling statute, but excluded the Democratic Party and recall proponents by denying their motion to intervene. That ruling was overturned on appeal, and the appellate court vacated the decision to shift the burden to the GAO.

Walker's camp was only able to challenge between 10% and 15% of the recall signatures, which was nowhere near the amount required to disqualify the petition.

So, now the recalls are set for a May primary election and a June general election.

Let's turn to another aspect of the Walker administration. The WI GOP has worked hard to impose mandatory photo IDs on the voting population. What's that fight all about and why is it such a big deal?

Photo ID laws are a part of a coordinated, nationwide voter suppression drive by the GOP designed to make it more difficult to register to vote, more difficult to cast a vote and more difficult to insure that one's vote is counted. That effort was described by Judith Brown Dianis, a civil rights litigator who testified at last September's hearings before the U.S. Senate, as "the largest legislative effort to roll back voting rights since the post-Reconstruction era."

The BRAD BLOG provided detailed coverage of those hearings:

U.S. Senate Hearings on New GOP Voter Suppression Laws [Part 1 of 2] - Photo ID Restrictions and the Disastrous Return of Hans von Spakovsky


U.S. Senate Hearings on New GOP Voter Suppression Laws [Part 2 of 2] - Restrictions on Registration, Early Voting and YOUR Right to Vote...

Photo ID laws are essentially a solution in search of a problem. The "Big Lie" entails the canard that such laws are needed to prevent "voter fraud." The only type of voter fraud that can be prevented by polling place photo ID laws is in-person voter impersonation--a problem that is virtually non-existent. As revealed by the written Senate testimony of Loyola Law Prof. Paul Levitt, only nine out of more than 40 million votes cast since 2000 have been identified as "possibly" being the result of voter impersonation. People are struck by lightning more frequently.

While, for many, obtaining photo ID is not a problem, it is a problem for significant segments of the population--the poor, the elderly, students, minorities, who do not possess state approved forms of photo IDs. Obtaining photo ID in a state like Wisconsin is often not only burdensome but in some cases impossible. Such was the case with Bettye Jones, a 77-year old, home born African-American who recently moved to Brookfield WI with her daughter. Although she had been voting since the 1950s and possessed a valid Ohio driver's license, she could not obtain an official WI photo ID because officials in TN could not locate a birth certificate for her.

See, New Federal Lawsuit Provides U.S. DoJ Golden Opportunity to Challenge Polling Place Photo ID Restrictions Under Section 2 of Voting Rights Act

The true purpose of photo ID can be understood only when one comes to appreciate that photo ID laws have a disproportionate adverse impact upon the poor, the elderly, minorities and students, none of whom tend to vote for GOP candidates.

So, Wisconsin's photo ID provisions have been struck down by injunctions issued by two different circuit court judges. On what grounds? And was that the end of the story? Has the WI GOP now given up on photo IDs?

Both decisions are based on the Wisconsin Constitution, which, unlike the U.S. Constitution, treats voting as a "fundamental right." That is the first of numerous grounds which distinguish the challenges to Wisconsin photo ID from the facial challenge to Indiana's photo ID law that was rejected by the U.S. Supreme Court in Crawford v. Marion County Board of Elections .

The fact that the Indiana case involved a challenge to constitutionality "on its face" is critical to understanding ongoing litigation over photo ID not only in Wisconsin but throughout the nation. Although the U.S. Supreme Court noted that Indiana had failed to produce evidence of a single instance of in-person voter impersonation during the Hoosier State's entire history (the only form of voter fraud that can be prevented by photo ID), the plurality opinion also revealed that because the opponents of Indiana's photo ID law only challenged the law on its face, they had failed to identify so much as a single voter who would be deprived of the right to vote by reason of the photo ID statute. (A number of Indiana residents including a WW II Vet and a group of nuns in South Bend were disenfranchised after the Court's decision in Crawford was final). The Court's plurality opinion noted that the question of constitutionality under the Equal Protection Clause of the 14th Amendment of the U.S. Constitution turned on the question of whether obtaining photo ID was unduly burdensome, and, in Indiana, they found that it was not.

WI Circuit Court Judge David Flanagan, in Milwaukee Branch of the NAACP v. Walker , applied classic Equal Protection analysis to the WI Photo ID law. Because the WI Constitution treats the right to vote as "fundamental," he subjected the legislation to heightened (strict) scrutiny to determine whether the law was unconstitutional. Where the lower level of scrutiny (minimum scrutiny) utilized by the U.S. Supreme Court in Crawford required only that Indiana demonstrate that its photo ID law was rationally related to a legitimate governmental interest, under the WI Constitution, WI had the burden of proving that its photo ID legislation was narrowly tailored to achieve a compelling governmental interest.

Based on "uncontested evidence," Judge Flanagan issued a temporary injunction. The government failed to demonstrate a compelling state interest in photo ID as there was no evidence presented of cases of in-person voter impersonation--again, the only type of voter fraud that could be prevented by polling place photo ID. Moreover, that uncontested evidence revealed a disparate impact upon minorities, the poor, handicapped and the elderly. Unlike the record before the U.S. Supreme Court in Crawford , the uncontroverted evidence before Judge Flanagan revealed that obtaining photo IDs, for many otherwise eligible voters in Wisconsin, was unduly burdensome, and, in some cases, impossible.

Judge Richard Neiss, in League of Women Voters v. Walker , ruled that Wisconsin's photo ID law was unconstitutional "on its face." He ruled that the "right to vote belongs to all Wisconsin citizens who are qualified electors, not just the fortunate majority for whom [the photo ID law] poses little obstacle at the polls." He granted a summary judgment and issued a permanent injunction, ruling that Gov. Walker and the GOP-controlled Legislature impermissibly sought to "eliminate the right of suffrage altogether for certain constitutionally qualified voters."

Both decisions have been appealed. The intermediate appellate court handling the appeal of Judge Flanagan's ruling refused to issue a stay. Thus, for now, WI voters will not be required to present photo ID in order to exercise their right to vote.

See, WI Appellate Court Refuses to Stay Injunction on GOP's Polling Place Photo ID Restriction

In addition to the appeals filed by Wisconsin's Republican Attorney General, which are still pending, the GOP filed an ethics complaint against Judge Flanagan, alleging that he should have disclosed that he signed a petition to recall Scott Walker.

After Judge Flanagan's decision was promptly followed by Judge Neiss' permanent injunction and the appellate court's refusal to grant the stay, "Landmark Legal Foundation" lodged ethics complaints against 29 WI jurists who had signed recall petitions. Landmark is funded by the likes of Exxon-Mobil and the Charles G. Koch Charitable Foundation. Its president, right-wing talk radio host Mark Levin, compared "President Obama to Hitler and referred to the National Organization for Women as the "National Organization for Really Ugly Women.'" Rush Limbaugh is an unpaid member of its advisory board.

I wrote an article setting forth why I believed the Landmark ethics complaints were specious.

See, The War for Wisconsin: As Photo ID Restrictions Hit Constitutional Roadblock, Hard Right Takes Aim At WI Judiciary, Files 29 'Ethics Complaints'

The appeals may ultimately wind up in the Wisconsin Supreme Court, which sports an extraordinarily partisan Republican 4-3 majority.

So, I guess, it's not over til it's over. Can interested observers in other states committed to making the vote as accessible as possible learn something from what's going on in Wisconsin?

Yes, especially as it pertains to fending off photo ID legislation.

What else would you like to talk about before we wrap this up, Ernie?

Well, without going to any of the details, I have several additional pieces I'm working on pertaining to an ethics complaint filed by the Center for Media and Democracy against 43 Wisconsin Republican legislators that arises out their relationship to ALEC and another ethics complaint pending against the controversial right-wing WI Supreme Court Justice David Prosser.

OEN readers may want to check in periodically at The BRAD BLOG for further developments in the "War for Wisconsin."

We sure will! The Brad Blog has become one of the best places to follow what's really going on with our elections across the country. It's a terrible shame what's been happening in Wisconsin since Walker's election. Those cheeseheads* have always been so hospitable to progressives and progressive causes. I hope they're able to get their mojo back - for their own sake and for the rest of us. Ernie, thanks so much for talking with me and for supplying the helpful links for our readers. It's been very informative.

*nickname for Wisconsin residents

Ernie's bio at OpEdNews

Submitters Website:

Submitters Bio:

Joan Brunwasser is a co-founder of Citizens for Election Reform (CER) which since 2005 existed for the sole purpose of raising the public awareness of the critical need for election reform. Our goal: to restore fair, accurate, transparent, secure elections where votes are cast in private and counted in public. Because the problems with electronic (computerized) voting systems include a lack of transparency and the ability to accurately check and authenticate the vote cast, these systems can alter election results and therefore are simply antithetical to democratic principles and functioning.

Since the pivotal 2004 Presidential election, Joan has come to see the connection between a broken election system, a dysfunctional, corporate media and a total lack of campaign finance reform. This has led her to enlarge the parameters of her writing to include interviews with whistle-blowers and articulate others who give a view quite different from that presented by the mainstream media. She also turns the spotlight on activists and ordinary folks who are striving to make a difference, to clean up and improve their corner of the world. By focusing on these intrepid individuals, she gives hope and inspiration to those who might otherwise be turned off and alienated. She also interviews people in the arts in all their variations - authors, journalists, filmmakers, actors, playwrights, and artists. Why? The bottom line: without art and inspiration, we lose one of the best parts of ourselves. And we're all in this together. If Joan can keep even one of her fellow citizens going another day, she considers her job well done.

When Joan hit one million page views, OEN Managing Editor, Meryl Ann Butler interviewed her, turning interviewer briefly into interviewee. Read the interview here.

While the news is often quite depressing, Joan nevertheless strives to maintain her mantra: "Grab life now in an exuberant embrace!"

Joan has been Election Integrity Editor for OpEdNews since December, 2005. Her articles also appear at Huffington Post, RepublicMedia.TV and