Not a Pretty Picture: Potential Challenges to Wisconsin’s Voter ID Law

In August 2011, The League of Women Voters of Wisconsin publicly announced its intention to file a lawsuit challenging the constitutionality of the new Wisconsin Voter ID law. While no complaint has been filed as of date, and it is undoubtedly foolish predict the likelihood of success of any lawsuit without first reading the complaint, one would expect the promised lawsuit to face a hostile reception in the courts. This statement does not mean that the Wisconsin Voter ID law reflects good public policy. Many people believe that it does not. Nor does the above statement mean that the existing judicial precedent focusing on state voter ID laws does a particularly credible job at analyzing the constitutional issues raised by this type of legislation. Many will argue that the existing precedent is flawed. However, the current legal landscape is what it is, and the fact remains that any future legal challenge by the League of Women Voters seems unlikely to succeed.

A. The Right to Vote Under the U.S. Constitution

The text of the United States Constitution does not expressly guarantee the right to vote. Nonetheless, in Harper v. Virginia State Board of Elections the United States Supreme Court ruled that the right to vote in state elections is a fundamental right protected by the Equal Protection clause of the United States Constitution. A large body of precedent has reaffirmed the primacy of the right to vote under our constitutional structure, holding that the ability to vote cannot be arbitrarily abridged or denied to groups of otherwise legitimate voters.

Notwithstanding the recognition that the right to vote is fundamental, the United States Supreme Court has declined to apply strict scrutiny to all election regulations which place some minor, even-handed burden on the ability to cast a ballot.

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R.I.P. Derrick Bell, Pioneer of Critical Race Theory

 

On Wednesday of this week, the world lost several visionaries. Rev. Fred Shuttlesworth, a prominent civil rights activist, and Steve Jobs, co-founder of Apple, Inc. both died.  But there was a third visionary whose light went out on Wednesday:  Derrick Bell.

Bell was a visiting professor of law at New York University School of Law when he died. He is considered a pioneer of critical race theory, which theory examines issues of race, racism, and power in law and legal institutions.  But while he had spent most of his life as an academic, his roots – and his defining experiences – were in civil rights.

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Weisberg on Mass Incarceration and Purposes of Punishment

Bob Weisberg’s just-delivered Barrock Lecture, “Reality-Challenged Theories of Punishment,” can be viewed here. After reviewing the extraordinary data on the mass incarceration phenomenon in America, Bob considers the implications for each of the traditional purposes of punishment (retribution, incapacitation, general deterrence, specific deterrence, and rehabilitation). I think he is spot-on that the theorists advocating for each of these different approaches have not adequately come to grips with the realities of mass incarceration. Punishment theorists frequently bemoan their marginalization in the policymaking realm. Perhaps they could make their work seem more relevant outside the academy if they took better account of the scale of contemporary incarceration and its particular impact on certain social groups.

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