Tuesday, August 19, 2014
placeholder for a post on what's wrong with the standard of review the wi s ct used in its voter ID case.
a few thoughts friday night 8/23 before bed:
the court uses a "constitutional until proven guilty beyond a reasonable doubt"standard.
i havent checked the cases they cite that quote from, but they shouldn't be election cases.
this standard is far too deferential. the US supreme court, while it upheld Posner's result in Crawford v Marion County Election Board, rejected the änything goes"standard of Burdick v Takushi which Posner and the district court had used. the WI standard is even worse.
One problem, of many, with the standard that the court uses is that it destroys separation of powers.
instead of having 3 equal branches serving as checks and balances to each other, the court is deliberately passive, asleep at the wheel.
Let's think about any of the landmark cases of the US Supreme Court over the past 100 years. How would those cases fare under a beyond a reasonable doubt standard?
Brown v Board.
Loving v Virginia.
Reynolds v Simms.
Nixon v USA.
Clinton v Jones.
Miranda
Gideon v Wainright
In each case, there was some reasonable doubt in favor of the losing side.
There's more at stake here than just voter ID. Effectively, Wisconsin doesn't have a constitution anymore.
There's one on paper, but there's no effective enforcement mechanism to have it mean anything.
a few thoughts friday night 8/23 before bed:
the court uses a "constitutional until proven guilty beyond a reasonable doubt"standard.
i havent checked the cases they cite that quote from, but they shouldn't be election cases.
this standard is far too deferential. the US supreme court, while it upheld Posner's result in Crawford v Marion County Election Board, rejected the änything goes"standard of Burdick v Takushi which Posner and the district court had used. the WI standard is even worse.
One problem, of many, with the standard that the court uses is that it destroys separation of powers.
instead of having 3 equal branches serving as checks and balances to each other, the court is deliberately passive, asleep at the wheel.
Let's think about any of the landmark cases of the US Supreme Court over the past 100 years. How would those cases fare under a beyond a reasonable doubt standard?
Brown v Board.
Loving v Virginia.
Reynolds v Simms.
Nixon v USA.
Clinton v Jones.
Miranda
Gideon v Wainright
In each case, there was some reasonable doubt in favor of the losing side.
There's more at stake here than just voter ID. Effectively, Wisconsin doesn't have a constitution anymore.
There's one on paper, but there's no effective enforcement mechanism to have it mean anything.
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