And the One Wisconsin Institute has joined as a sponsor.
A federal judge last week reinstated allegations that the state's voter ID law violates the Voting Rights Act and place significant burdens on the right to vote.
The counts, originally contained in a 2015 lawsuit challenging the state's restrictive voting laws, later were dismissed after a 7th District Court of Appeals ruled that a Wisconsin Department of Transportation process for issuing voter ID cards in hardship situations would make the law less burdensome and upheld it.
U.S. District Judge James D. Peterson, however, reinstated the counts after the plaintiffs -- the One Wisconsin Institute Inc., Citizen Action Education Fund, and several individuals -- argued that WisDOT fumbled the process and administered it in an "arbitrary, capricious, abusive, 'needlessly hard,' and racially discriminatory manner that only further exacerbates the disproportionate impacts of the voter ID law on African Americans, Latinos, senior citizens, the poor, and other populations targeted by the voter ID law and the other voting restrictions at issue in this litigation."
The amended lawsuit also alleges that the state's free ID process is "imposed in a staggeringly disproportionate manner on African American and Latino voters, and presumably Democratic voters as well."
An earlier post on some of the hurdles faced by potential voters is here.
"We are grateful that the court has agreed to hear arguments on Wisconsin's restrictive voter ID law," One Wisconsin Institute Executive Director Scot Ross said Monday. "We are starting to see the real consequences this law has for people who simply want to exercise the most basic of American rights - to legally cast their ballot in our elections, without cost and without obstruction. Wisconsinites shouldn't have to do bureaucratic battle with the DMV in order to exercise their right to vote."
In an amended complaint filed Friday, One Wisconsin and its allies detailed the obstacles and frustrations of additional potential voters.
Johnny M. Randle, 74, is an African-American Milwaukee resident born in Tchula, Mississippi. He moved to Wisconsin in 2011 to be cared for by his daughter, according to the suit. The two have been trying since then to get a Wisconsin ID for him. He finally asked WisDOT's Division of Motor Vehicles to grant him a free ID because he could not get his Mississippi certificate without having to incur fees and expenses, according to the complaint.
"DMV required him to go through a five-month-long 'adjudication process' that culminated in an October 7, 2015 rejection letter," the suit said.
Randle's daughter had eventually tracked down her father's birth certificate, but "DMV ruled he was nevertheless ineligible because the name on his birth certificate is 'Johnnie Marton Randall,' whereas the name he has used for his entire adult life is 'Johnny Martin Randle,'” the complaint said.
DMV said Randle would need to go through the Social Security Administration to get the name changed on his Social Security card changed so it matched the birth certificate or to go to court to get his name legally changed and then provide court documents to DMV as proof of the name change.
"DMV has no basis to question Mr. Randle’s U.S. citizenship or that he is who he says he is," the complaint said. "Absent relief from this Court, Mr. Randle may never be able to vote again."
Another African-American, David Walker, 64, of Milwaukee, is registered to vote and has often done so, according to the suit. Walker has been trying for 20 years to get his birth certificate from Missouri, but that state has repeatedly said there is no record of his birth there. Walker is not sure about the circumstances of his birth and both of his parents are dead, the complaint said.
He, too, asked DMV for a voter ID, according to the lawsuit. Nine month later, after Missouri confirmed four times that it did not have a record of Walker's birth, DMV rejected Walker's request "pursuant to this lack of required documentation."
"Absent relief from this Court, Mr. Randle may never be able to vote again."
DMV said Walker was free to re-apply and submit other types of documentation that he did not have and could not obtain, the complaint said.
"DMV undertook no efforts to help Mr. Walker track down these ancient records, although it sometimes provides such assistance to other petitioners," the complaint said. "DMV has no basis to question Mr. Walker’s U.S. citizenship or that he is who he says he is."
David Aponte, of Milwaukee, is a 58-year-old Latino who lives in Milwaukee. He also is a registered voter. Aponte believes he was born in eastern Pennsylvania, but his family moved to Puerto Rico, where he was baptized and got his Social Security Card, according to the suit.
Aponte asked DMV for a free ID because Pennsylvania had no record of his birth. Nine months later, after Pennsylvania confirmed three times that it could not locate Aponte's birth records, DMV told Aponte to look for other documents that would confirm his legal identity.
"Mr. Aponte’s mother (a Florida resident) called the DMV twice to confirm her son’s birth in Pennsylvania, and reported that the hospital where David had been born in 1958 had burned down and all records lost," the suit said.
Although Aponte's main language is Spanish and he sometimes needs an interpreter's help, DMV did not offer him one to assist him to understand the agency's questions, the suit said.
DMV rejected Aponte's request, the suit said.
"The ID petition process is plagued with long delays, red tape, repeated errors, inconvenient service hours, and the need for enormous voter fortitude and persistence," the suit said.
Family members and caregivers of elderly applicants must spend time dealing with "multiple bureaucracies in multiple jurisdictions on the senior petitioners’ behalf," the suit said. "DMV’s files are replete with
evidence of customer complaints about receiving inaccurate and misleading information
about the process, complaints from agency personnel about the lack of any standards or
guidance, and audits showing sub-par agency performance" administering the voter ID process.
So what should happen when a judge breaks the law?
Milwaukee County Circuit Judge Richard Sankovitz clearly violated statute when he let jurors take notes during closing arguments in a criminal trial.
The defense lawyer objected. The prosecutor indicated agreement with the objection, but did not join it.
The District 1 Appeals Court panel, in an opinion by Appeals Judge Kitty K. Brennan, labeled it "harmless error" and upheld the conviction of Jesus C. Gonzalez on one count of first-degree reckless homicide and one count of second-degree recklessly endangering safety.
But, wrote Appeals Judge Joan Kessler in a concurring opinion: "A reasonable person might well ask under such circumstances: 'If judges do not have to follow the law, why do the rest of us have to do so?'"
In their opinions, both Brennan (joined by Appeals Judge Patricia S. Curley) and Kessler said Sankovitz was wrong in what he did. The law, in fact, is pretty clear on the matter: "If the court authorizes note-taking, the court shall instruct the jurors that they may make written notes of the proceedings, except the opening statements and closing arguments..."
And during the trial, according to the opinions, the judge himself told the jury, "There's a state statute which says that jurors are not allowed to take notes during the closing argument."
He added, "Most judges believe that the state statute is one that gives us some discretion."
The defense, in its objections, said arguments are simply each side's inferences drawn from the evidence and that jurors should not treat lawyers' arguments and actual evidence in the same way.
The prosecutor actually cited for the judge the statute that prohibits note-taking during closing arguments.
Sankovitz ignored them both. "I made my record of why I am allowed to use my discretion to allow the jurors to take notes," he told them.
Brennan, in the appeals opinion, wrote that there was still enough evidence to convict Gonzalez; that he still was tried before an impartial jury; that the judge gave appropriate instructions about evidence; and that no new evidence was introduced during the closing arguments.
Kessler, though, noted that state law (apparently one that was followed!) mandates that juror notes be destroyed when a trial is completed.
"Any evidence of prejudice or juror misconduct which might appear in the notes will never be available to establish prejudice to either side," she wrote.
The proper question before the court, she said, "was whether a legislative determination of policy may be disregarded based on...the court's belief that its policy is superior to the policy chosen by the legislature." she wrote.
She concluded: "When the trial court believes the legislative policy is unwise, the remedy is to pursue legislative change, not to exercise 'discretion' to ignore the policy."
Twelve Wisconsin law professors -- seven from Marquette University and five from the University of Wisconsin - Madison -- joined 344 of their colleagues from around the country to urge US senators to hold a hearing and vote on President Obama's nominee to the US Supreme Court.
Obama has nominated of Merrick B. Garland, widely considered a centrist juror, to the seat vacated by the death of Antonin Scalia.
The letter, signed by a total of 356 law professors and legal scholars, warned that "a long-term vacancy jeopardizes the Supreme Court’s ability to resolve disputed questions of federal law, causing uncertainty and hampering the administration of justice across the country."
"A number of senators have announced that they will not perform their constitutional duty," the letter says. "Instead, they plan to withhold advice and consent until the next president is sworn in nearly a year from now. This preemptive abdication of duty is contrary to the process the framers envisioned in Article II, and threatens to diminish the integrity of our democratic institutions and the functioning of our constitutional government.
Marquette Law School Professor Harvey Kurtz said he signed the letter because "the constitutional duties of the President and the Senate in the matter of appointing and confirming Justices of the Supreme Court are clear beyond doubt. Every utterance that seeks to color the simple and direct statement of those duties in the constitution is a lie. We must finally demand that our elected representatives stop lying to us and hold them accountable for doing so."
"President Obama was elected to a four-year term by the American people," said Marquette Professor Paul Secunda, who also signed the letter. "During this term, the people have already spoken and have given the President constitutional authority to nominate members of the Supreme Court. The Senate has no adequate legal justification for failing to fulfill its constitutional role of advice and consent."
"By refusing to grant the President’s nominee a hearing, the Senate leadership is exceeding its constitutional authority," said Marquette Professor Ed Fallone. "They are upsetting the carefully drafted balance of power contained in Article II of the Constitution.
"The United States Constitution is the foundational law of our land," he said. "It cannot be followed or avoided depending upon convenience or political expediency. Senate Republicans must uphold the oath that they took when they were sworn in – an oath to uphold the Constitution – and give Judge Garland a hearing.
Other Wisconsin letter signers include Susan Bay, Jay Gold, Lisa Mazzie, and Richard Reider of Marquette; and Craig Fieschko, Ted Finman, Margaret Maroney, Thomas Mitchell, and Alan Jay Weisbard of UW-Madison.
It is easier to get a concealed carry license in Wisconsin than to get a voter ID through the Wisconsin Department of Transportation's petition process.
The overall rejection rates -- so far about 1.5% for each in 2015 -- are about the same, according to federal court documents and the Department of Justice's concealed carry annual report. But a much larger share of voter ID applicants walk away in frustration without their desired documents, according to records.
Overall, 11% of CCW applications processed last year did not result in a CCW license; 13% of voter ID applications resulted with no ID issued, according to records. There were 55 voter ID applications still pending.
WisDOT's voter ID petition process is supposed to help clear red tape for Wisconsin residents having a hard time getting their voter IDs. That does not necessarily happen, however. The lawsuit challenging the process, filed by the One Wisconsin Institute, Citizen Action of Wisconsin Education Fund, Inc. and several individuals argues, that WisDOT's administration of the program is "arbitrary and capricious."
One Wisconsin considered the 1,062 voter ID applications process by the Wisconsin DOT, through its Division of Motor Vehicles, as of late February. Some 1.5% of those were denied. Last year, the state processed 45,549 CCW applications, and 1.5% of those were denied. (A brief in the lawsuit said the number of denials is expected to increase.)
The voter ID and CCW license denials were for vastly different reasons. In the cases of voter IDs, according to the documents in the lawsuit, DMV "denied the petitions of many eligible voters because of minor discrepancies in the spellings of their names or uncertainties about their exact dates of birth—even though DMV acknowledges it has no doubts these disenfranchised voters are U.S. citizens."
Sometimes months-long investigations were followed by denials, according to the suit. "As DMV admits, these burdens are imposed even where there is no doubt whatsoever that a petitioner is a U.S. citizen."
Concealed weapon applications were denied during the background check process for very different reasons -- often related to criminal histories -- as shown in the chart below.
And when applicants submit identification information that doesn't quite match?
For CCW applicants, "The (1,267) DOT mismatches were held for the applicant to make corrections and then moved through the application process with no additional fee required," according to the Department of Justice's annual report. (The report says those applications were denied, but we do not, as they were only delayed.)
But for those seeking their voter IDs, the story was different, according to the brief. Some 61 of 1,062 applications were cancelled by the customer, and 66 more were suspended.
"It appears that many of the 'suspensions' resulted when DMV told a petitioning voter, after several unsuccessful attempts, to keep searching for additional proofs of his name, birthdate, and 'identity,' and the voter simply gave up and was never heard from again; many of the 'withdrawals' resulted when the voter told the DMV that he was giving up in anger and frustration," the brief said. "There is evidence this has repeatedly happened."
A 70-year-old woman trying to get a voter ID card from the Wisconsin Department of Transportation was told that the State Department of Health Services said she was dead, even though the federal government said she was alive. WisDOT sent her away to sort out her status.
The woman never did get her ID.
A health care worker assisting another potential voter tried unsuccessfully eight different times to submit the voter's baptism certificate to WisDOT's Division of Motor Vehicles as proof of identity. Senior DMV officials finally relented when the baptism certificate was submitted along with proof that the voter's parents were buried in Wisconsin.
And in several instance, DMV directed voters who were adopted and didn't know about much about their births to find out.
Those stories of bureaucracy gone bad are included in documents filed in federal court last month in support a legal challenge to the state's voter ID law. The filing by the One Wisconsin Institute, Citizen Action of Wisconsin Education Fund, Inc. and several individuals argues that new evidence about WisDOT's poor administration of the free ID program merits reinstatement of challenges to the law that were previously dismissed.
“There has been a comprehensive, systematic effort in Wisconsin to make voting harder and more complicated for targeted populations by Republican politicians attempting to gain an unfair partisan advantage,” Scot Ross, One Wisconsin Institute executive director, said when the brief was filed. “The documented failures of the DMV to provide legal voters with the ID they now need to exercise their right to vote is yet another sad episode in the assault on democracy underway in Wisconsin.”
Much of the new evidence comes from DMV files.
Consider this, for example. WisDOT provided to the plaintiffs files of 30 voters (of 1,062!) seeking a free ID under a petition process as of Feb. 16, according to the brief. Twenty-five, or 84%, of those voters were black or Latino. Only one of the voters of color succeeded in negotiating WisDOT's labyrinth and emerging with an ID; all of the white voters won approval to vote.
Other highlights (lowlights) from the brief:
An expert witness for the plaintiffs, Allan J. Lichtman, a history professor at American University and an authority on voting discrimination, reviewed the 30 files DMV provided. Nineteen of those applicants were denied voter IDs.
"Although 19 outright denials may seem like a small number, as far as I know it represents the first time since the era of the literacy test that state officials have told eligible voters that they cannot exercise their fundamental right to vote – not in the next election, probably not ever," he wrote.
The entire brief is below.
There also were 15 one-judge decisions issued in February. Oddly enough, judges must sign the less-serious one-person judges, but can remain anonymously "per curiam" in three-judge decisions.
We have the February 2016 Wisconsin Court of Appeals summary!
Authors of three-judge opinions were (drum roll, please):
District 1: Patricia S. Curley, Joan F. Kessler
District 2: Mark Gundrum (2), Brian K. Hagedorn, Lisa S. Neubauer
District 3: Lisa K. Stark (2)
District 4: Brian W. Blanchard, Paul B. Higginbotham (2), Paul Lundsten, Gary E. Sherman
Circuit judges reversed in three-judge cases: James R. Habeck (Shawano County), James R. Kieffer (Waukesha County), Richard T. Werner (Rock County), , Richard G. Niess (Dane County),
Affirmed in part Thomas B. Eagon (Portage County), Ellen K. Berz (Dane County), Robert P. Vandehey (Grant County)
Those issuing one-person decisions in February were:
District 1: William W. Brash III, Joan F. Kessler
District 2: Paul F. Reilly
District 3: Thomas M. Hruz, Lisa K. Stark
District 4: Brian W. Blanchard (3), Paul B. Higginbotham, JoAnne F. Kloppenburg, Paul Lundsten (2), Gary E. Sherman (3)
Circuit judges reversed in one-judge cases: Ramona A. Gonzalez, La Crosse County
The State Department of Justice is acting like a bully by refusing to take simple and inexpensive steps to ensure that victims of identity theft are not mistaken by potential employers and others for the criminals themselves, according to Appeals Judge Gary E. Sherman.
"A citizen of this state is being harmed by a practice of the government that has no apparent governmental purpose and that would be easy and inexpensive to correct, yet the only response of the authority is that it will continue to do so because there is no law that compels it to do otherwise," Sherman chided in his concurring opinion in Dennis A. Teague v. J. B. Van Hollen.
In essence, the judge wrote, the Department of Justice's attitude is "'we are doing this to you because we can.' That is the response of a bully and not an appropriate response of the government of a democracy."
Teague, whose misfortune began was his name was used as an alias by a criminal, for now is out of luck. Sherman agreed with is his District 4 Court of Appeals colleagues Brian W. Blanchard and Paul B. Higginbotham that the court cannot compel the Department of Justice to try to alleviate any confusion about Teague's criminal record or, more accurately, lack of criminal record.
A little background: When someone's identity is swiped or used by a bad guy, the Department of Justice will provide an "innocence letter" to a victim when requested. The letter explains that the person has no criminal history and should not be confused someone else who has criminal history.
"That is the response of a bully and not an appropriate response of the government of a democracy." -- Appeals Judge Gary E. Sherman
DOJ does not, however, provide the letter to anyone, such as a potential employer, requesting a criminal history on the victim. So that requester may get notified that the victim's name was used by a criminal, leaving the potential for the misunderstanding that the victim is the criminal.
Teague wanted the court to require DOJ to tell anyone requesting his criminal history about his innocence letter. If DOJ didn't include the letter, Teague argued, his "reputation and opportunities for employment, housing, and the like could be impaired, because such responses could be read to imply that Teague and (the criminal) are the same individual, who has used both names and has a criminal history."
All three judges said the court lacked the power to give Teague the relief he sought.
Sherman, though, said DOJ, by failing to provide information about the innocence letters, was providing incomplete information to people requesting criminal histories.
“It is not settled law whether an incomplete response is an inaccurate response under the open records law, but logic would suggest that it is,” the judge wrote.
DOJ said that providing the letters would be inconvenient, but Sherman was skeptical.
“Because the number of innocence letters is small, the State’s argument is difficult to reconcile with good faith,” the judge wrote. “There are many ways in which an inexpensive routine method of checking for innocence letters could be incorporated into the procedure.”
"What is most troubling to me about this case is that it is here at all," Sherman wrote. "Just because one can do something does not mean that one ought to. Irrespective of this court’s ability to resolve the problem, why does the authority (DOJ) not resolve the problem itself? The authority has suggested no governmental reason not to do so."
No wonder Appeals Judge Mark Gundrum upheld the language in an anti-choice state law -- a lot of it was his!
Gundrum was the author of an Appeals Court opinion, released last month, that booted a request from Planned Parenthood of Wisconsin for clarification of language in an anti-abortion law.
Some of the very language Planned Parenthood was concerned about was language Gundrum himself proposed in 2007. Yes, Gundrum the judge blessed the language of Gundrum the legislator. The state Code of Judicial Conduct tells judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Does a judge ruling on his own language do that?
Before Gov. Scott Walker elevated Gundrum to the District 2 Appeals Court, Gundrum was a Waukesha County circuit judge and before that, he was a state representative from New Berlin boasting a 100% approval rating from Wisconsin Right to Life. As such, in June 2007, he proposed a law purportedly designed to ensure that women seeking abortions were doing so voluntarily.
Gundrum was the primary sponsor of AB 427, which included the following language:
The physician who is to perform or induce the abortion shall determine whether or not the woman’s consent is, in fact, voluntary. If the physician has reason to suspect that the woman is in danger of being physically harmed by anyone who is coercing the woman to consent to an abortion against her will, the physician shall inform the woman of services for victims or individuals at risk of domestic abuse and provide her with private access to a telephone if she states that she wishes to call for assistance.
He also was the sole sponsor of an amendment that inserted, after the word "determined" in the first line quoted above, the words "by speaking to the woman in person, out of the presence of anyone other than any person working for or with the physician."
Gundrum's 2007 bill failed. The representative moved on to circuit court and then the appeals court.
In 2012, the legislature passed and Gov. Walker signed a bill that contained language almost identical to that in the Gundrum bill.
The physician who is to perform or induce the abortion shall determine whether the woman's consent is, in fact, voluntary. Notwithstanding par. (c) 3., the physician shall make the determination by speaking to the woman in person, out of the presence of anyone other than a person working for or with the physician. If the physician has reason to suspect that the woman is in danger of being physically harmed by anyone who is coercing the woman to consent to an abortion against her will, the physician shall inform the woman of services for victims or individuals at risk of domestic abuse and provide her with private access to a telephone.
Planned Parenthood went to court seeking clarification of the law. The agency does not want to face a forfeiture up to $10,000 and civil liability if a doctor in good faith – but wrongly -- believes that a woman is seeking an abortion voluntarily or if the woman claims after an abortion that it was not voluntary. The law does not include a “good faith” exception for liability.
Dane County Circuit Judge Richard G. Niess agreed with Planned Parenthood, but the state appealed.
Gundrum and Appeals Judge Paul F. Reilly, who joined in the decision, said that Planned Parenthood did not show its doctors believed they might be at legal risk.
In a dissent, Appeals Judge Lisa S. Neubauer said that Planned Parenthood did express specific concerns.
In addition, she wrote, "The majority does not deny that the specter of forfeitures and civil liability under the statute is real—only that Planned Parenthood has not sufficiently expressed concern."
We've had State Supreme Court Justice David Prosser allegedly grab Justice Ann Walsh Bradley by the neck. We've had Justice Michael Gableman and Justice Rebecca Bradley leave oral arguments early to speak at a political gathering. And now we have the revelations of R. Bradley's college rantings.
These type of activities do not fit neatly into the American Bar Association's idea of judicial temperament.
Among the qualities which comprise judicial temperament are patience, open-mindedness, courtesy, tact, firmness, understanding, compassion and humility. Because the judicial temperament requires an ability to deal with counsel, jurors, witnesses and parties calmly and courteously, and the willingness to hear and consider the views of all sides. It requires the ability to be even-tempered, yet firm; open-minded, yet willing and able to reach a decision; confident, yet not egocentric. Because of the range of topics and issues with which a judge may be required to deal, judicial temperament requires a willingness and ability to assimilate data outside the judge's own experience. It requires, moreover, an even disposition, buttressed by a keen sense of justice which creates an intellectual serenity in the approach to complex decisions, and forbearance under provocation. Judicial temperament also implies a mature sense of proportion; reverence for the law, but appreciation that the role of law is not static and unchanging; understanding of the judge's important role in the judicial process, yet recognition that the administration of justice and the rights of the parties transcend the judge's personal desires. Judicial temperament is typified by recognition that there must be compassion as the judge deals with matters put before him or her.
Factors which indicate a lack of judicial temperament are also identifiable and understandable. Judicial temperament thus implies an absence of arrogance, impatience, pomposity, loquacity, irascibility, arbitrariness or tyranny. Judicial temperament is a quality which is not easily identifiable, but which does not wholly evade discovery. Its absence can usually be fairly ascertained.
Maybe the ABA meant everywhere but Wisconsin.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
Sign up for the free WJI newsletter.
Help WJI advocate for justice in Wisconsin