GOP has Voter ID advantage in Courts: Opponents must Prove Suppression by declining turnout numbers that don't exist yet.

It looks like Wisconsinites won't be needing a voter ID anytime soon:

Gazette: U.S. District Judge Lynn Adelman on Wednesday denied Attorney General J.B. Van Hollen's request for a stay of his April order blocking the photo ID law. Adelman says he is denying the request because Van Hollen's likelihood of winning the case on appeal is low.

Van Hollen doesn't seem worried thought, even without any proof of voting, which he readily admits too:

jsonline: The Wisconsin Supreme Court two weeks ago upheld voter ID in two cases, and Van Hollen argued those rulings showed he would prevail in federal court.  (Van Hollen is) optimistic about his chances ...“it’s almost impossible for us in Wisconsin, as law enforcers, to prove that it’s been done.”

The wrinkle in all of this is what I thought was worth blogging about. What Van Hollen is pinning his hopes on is this remaining section of the Voting Rights Act:

MSNBC: Section 2 requires victims of racial discrimination in voting to sue after the law has gone into effect, and puts the burden of proof on them … plaintiffs have to show, essentially, that under the law, minorities now have less ability to participate than do whites, and that that’s the result of racial discrimination, either past or present.

Does Voter ID Suppress Voting?  It’s not the number of voter fraud cases, it the number of voters that show up that will decide whether voter ID suppresses turnout. And that’s has to become a problem first:

In North Carolina, black turnout for presidential elections has reached parity with white turnout. And black registration rates in the state have actually surpassed those for whites.

Judge Thomas Schroeder (who rejected an effort by civil rights groups and the U.S. Justice Department to put North Carolina’s voting law on hold) wrote the first quote in the story below:

“Plaintiffs’ experts attribute these increases to the candidacy of President Barack Obama as well as to North Carolina’s election law changes since 2000.”

And it’s exactly those election law changes—primarily the establishment of same-day registration and extensive early voting—that the Republican law reversed. In other words, the law’s challengers are caught in a bind. Right now, whites and non-whites vote at similar rates in North Carolina. That could change once the state’s restrictive law has been in effect for a while. But for now, the numbers to prove it don’t exist … voting rights advocates can now only challenge voting restrictions after they’ve been in effect for long enough to have produced evidence of harm. But by then, of course, the damage has been done.

Not every judge has approached Section 2 in the way that Schroeder did. In April, Judge Lynn Adelman struck down Wisconsin’s voter ID law. For Adelman, the fact that black turnout in Wisconsin is currently comparable to white didn’t negate that conclusion.

Rick Hasen, a prominent election law scholar at the University of California, Irvine, thinks “Given the current conservative orientation of a majority of the Supreme Court, it seems likely that a Court majority would be more attracted to the narrow reading of Section 2.

There’s one way around this Catch-22: (For the North Carolina) plaintiffs to show that Republican lawmakers acted with deliberate racial bias in enacting the law … the law’s challengers needed access to emails and other correspondence from those responsibility from drafting and passing it. And thanks to stonewalling by lawyers for the state, they’ve so far received only a small portion of those records.  By the time the law goes to a full trial next summer, they’ll likely have much more of them. But by then, of course, the 2014 election will be long since over.

Plaintiff Burden of Proof: Here’s where Republicans can do almost anything they want. From an article under the heading “Current Events vs. Founding Documents,” by chest pounding "constitutionalist" Mark Musselman:

Judge Adelman side-stepped those criteria by claiming that the defendants failed to prove voter impersonation.  Since the burden of proof is normally on the plaintiffs, the plaintiffs should have been required to prove that photo IDs block qualified electors from voting based on race, national origin or ethnicity.  In the absence of such proof, his decision is a distortion of the Constitution.