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Republicans win major lawsuit on voting rules

Federal panel restores early voting, residency requirements


July 03, 2020 by Richard Moore

In a unanimous decision this week, a U.S. court of appeals sided with Wisconsin Republicans and reinstated early voting uniformity and residency requirements for certain elections.

In the most critical portion of the decision, the appeals court resurrected a law struck down by a district court that limits early voting to about two weeks before an election, and restored a requirement that voters must reside in the state for at least 28 days before being eligible to vote.

The judges also prohibited election officials from emailing or faxing absentee ballots to voters, except for a few categories of voters.

The lower court had invalidated the new voting rules as racially discriminatory, but the panel of federal judges said the provisions, while certainly meant to boost the prospects of the GOP, were not crafted with race in mind.

The judges determined that the district court itself identified politics as one reason legislators wanted to alter the rules of voting, specifically, the desire of a Legislature with a Republican majority to improve the chances of Republican candidates.

“The parties agree, and the district judge found, that race and politics are correlated: black voters are likely to prefer Democratic candidates,” the appeals’ decision stated. “Yet the record does not show that the legislators made any of the changes because Democratic voters are more likely to be black (or because black voters are more likely to support Democrats). The changes were made because of politics.”

The appeals’ judges cited a previous decision known as Rucho, which did not find that legislators must disregard politics when modifying voting rules. If they had, the judges reasoned, the district court’s analysis would have been stronger, i.e., that making changes that have a disparate effect but lack a valid reason look discriminatory. 

“But given the holding of Rucho that legislators are entitled to consider politics when changing the rules about voting — or at least that any contention to the contrary is not justiciable — the basis for inferring discrimination evaporates,” judge Frank Easterbrook wrote for the court. “This record does not support a conclusion that the legislators who voted for the contested statutes cared about race; they cared about voters’ political preferences.”

In addition to Easterbrook, the other judges were Michael Kanne and Diane Sykes. 

Democratic Party chairman Ben Wikler panned the decision, saying on Twitter that “GOP-appointed judges break 3-year silence, rule against voting rights in Wisconsin just 127 days from November 3. Roll back early voting, expand residency restrictions, block ballot access via email.”

The Wisconsin Democracy Campaign called the decision outrageous and said it was a gift to Wisconsin Republicans. 

Matthew Rothschild, the WDC executive director, said Easterbrook ignored the testimony of Todd Albaugh, who was Republican Sen. Dale Schultz’s chief of staff and who described some of the Republican senators as “giddy” after the voter ID law passed because “they were going to make it harder for African Americans and young people to vote.”

“Easterbrook didn’t see them as African Americans,” Rothschild wrote. “He just saw them as Democrats. And he seemed perfectly comfortable letting elected officials rig voting rules to give themselves an advantage.”

Rothschild said the biggest effect of the decision was to limit early voting across Wisconsin to the last two weeks before the election because Democratic strongholds, like Madison and Milwaukee, were offering more time for early voting.

“While I’m disgusted by this ruling, I’m not in despair over it,” he wrote. “Not by a long shot. Because there are tremendous grassroots groups working all over the state to register voters, to encourage voters to get an absentee ballot, and to work with municipal clerks on ensuring that there are plenty of places to vote early, even within the now-limited two-week period.”

Senate majority leader Scott Fitzgerald (R-Juneau) called the decision a win for fair elections.

“The ruling puts municipalities in every corner of Wisconsin closer to equal footing when it comes to early in-person voting,” Fitzgerald said. “I applaud the 7th Circuit on its decision and look forward to moving on with this fall’s elections.”


The two-week window

As Fitzgerald suggested, one of the major disputes in the lawsuit was over the amount of time allowed for in-person absentee voting. At its heart, the court found, there was nothing wrong per se with limiting those hours and days.

“We do not see a substantive problem with days-and-hours limitations, however,” the decision stated. “They leave all voters with equal opportunities to participate. Early voting is not a fundamental right in itself; it is but one aspect of a state’s election system. As we have stressed, Wisconsin’s system as a whole is accommodating. So long as a state treats all voters equally, (the act) does not limit the state’s control of details such as hours for early voting.”

Approximately 20 states offered no early voting at all, the court observed.

“(I)t is hard to see why Wisconsin’s marginal adjustment of the number of days and hours when that voting occurs could violate the Constitution,” Easterbrook wrote.

As Rothschild pointed out, Democratic strongholds offered more time for early voting, but state Sen. Duey Stroebel (R-Cedarburg) praised the decision, which would make such voting uniform throughout the state.

“Everything in our election process is designed to ensure consistency and fairness in voting opportunities across Wisconsin,” Stroebel said. “We have uniform registration rules, poll hours, campaign finance rules and bipartisan boards to oversee it all. The important provision I authored in the Assembly created a uniform timeframe for in-person absentee voting. Just as it makes common sense to prescribe a beginning and end to poll hours on Election Day, it makes sense to prescribe a beginning and end to in-person absentee voting.”

The district court also found the law’s increase in the durational residency requirement to vote from 10 days to 28 days to be unconstitutional, but the appeals panel disagreed.

“Wisconsin’s 28-day window is close to the national norm and less than the 30-day window that is subject to a safe harbor for federal elections,” the decision states. “It is less than the 50-day window that the Supreme Court held to be constitutional for Arizona. Plaintiffs have not identified any feature of Wisconsin’s law that makes a 28-day window more onerous in that state than 50 days was in Arizona.”

Another decision, the appeals judges added, held that 90 days in Tennessee was too long, but was OK with 30 days.

Richard Moore is the author of the forthcoming “Storyfinding: From the Journey to the Story” and can be reached at richardmoorebooks.com.



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