By Jack Zemlicka
Wisconsin Law Journal
and Barbara Rodriguez
MADISON, Wis. (AP) — A Wisconsin judge on Tuesday granted a temporary injunction to stop the state’s controversial new voter identification law, but Republicans immediately questioned it after records showed the judge signed a petition to recall GOP Gov. Scott Walker.
Dane County Circuit Judge David Flanagan’s decision to stop the contentious law from taking effect for the state’s April 3 presidential primary election was criticized by the state’s Republican Party following a report that Flanagan signed a recall petition dated Nov. 15. It also lists his wife, who circulated the petition.
The Milwaukee Journal Sentinel reported Tuesday that Maureen McGlynn Flanagan confirmed she circulated the petition and that her husband signed it.
The NAACP’s Milwaukee branch and immigration rights group Voces de la Frontera filed the lawsuit last year. They named Walker and members of the Government Accountability Board as defendants.
NAACP Attorney Richard Saks said Flanagan’s signature shouldn’t disqualify him from the case.
“He’s a citizen. He has a right to vote. He has a right to participate in the political process and the discourse of our state,” he said. “I don’t think it had any bearing on his decision in this case.”
The Republican Party of Wisconsin said it will file a complaint with the Wisconsin Judicial Commission. The party also said it will look into Flanagan listing Melissa Mulliken, a former adviser to Kathleen Falk, as his campaign manager on his official website. Falk is planning to run against Walker in a possible recall.
Janine Geske, a professor at Marquette University’s law school and a former state Supreme Court justice, said Flanagan should have revealed to both parties that he had signed the petition. As a private citizen he has every right to sign the petition, Geske said, but the question is whether doing so could cause people to question his impartiality.
“I think he’s a very good judge but the problem is the perception,” she said. “It’s not going to help that he signed a recall petition.”
But, according to ethics attorney Dean Dietrich, of Ruder Ware LLC, Wausau, Flanagan likely didn’t violate Wisconsin’s Judicial Code of Conduct.
“The right to vote and the right to sign a petition to pursue a recall seem to be pretty fundamental rights of anybody regardless of their employment,” Dietrich said. “Someone would be hard-pressed to suggest that a judge, just because they may be faced with an issue down the road, would be precluded from voting or signing a petition and have to recuse themselves.”
John Dawson, chair of the Wisconsin Judicial Commission, declined to comment on whether or not Flanagan’s action constituted a potential violation of the Judicial Code.
“I’m not going to speculate,” he said. “I don’t want to express any opinion if it at all comes to the attention of the commission.”
The judge did not immediately return calls left at his office and home.
Wisconsin Supreme Court Rule 60 covers judicial conduct. There is nothing explicit in the rules that forbid judges from signing recall petitions.
However, there is language in section 60.06(2) that prohibits judges from participating “in the affairs, caucuses, promotions, platforms, endorsements, conventions, or activities of a political party or of a candidate for partisan office.”
Dietrich suggested that even a complaint is filed, he doesn’t think the rules would be applied so broadly as to warrant discipline.
“I see the signing of a recall petition as an extension of the right to vote,” he said. “So I think I have a pretty good sense this would not be covered. This one is real thin.”
Flanagan’s ruling said the NAACP and Voces demonstrated “the likelihood of irreparable harm.” It ordered the GAB and Walker to cease efforts to enforce the law pending a five-day trial scheduled for April 16. Flanagan will rule then if the injunction should be permanent.
The NAACP and Voces have been in and out of court over the last several months to try to stop the law. They filed 40 affidavits describing peoples’ difficulties complying with the law, but Flanagan earlier said the affidavits did not sufficiently demonstrate irreparable harm. The law went into effect in February in time for the spring primary election. Few problems at the polls were reported, though critics of the law said it was because of low turnout.
New testimony from a University of Wisconsin-Madison professor appears to have changed Flanagan’s mind. Political science professor Kenneth Mayer’s reports indicated that a significant proportion of eligible Wisconsin voters, particularly minority groups and elderly, do not possess acceptable photo ID.
Flanagan called Mayer’s testimony “competent, well-founded, entirely credible and persuasive.”
State Department of Justice spokeswoman Dana Brueck, which represents GAB, said an appeal is likely.
“We disagree with the ruling and will continue our efforts to defend Wisconsin’s voter ID law, which is similar to laws that have already been upheld by the United States Supreme Court,” she said in an email.
Christine Neumann-Ortiz, executive director at Voces de la Frontera, said the ruling will have major implications for other states with similar laws. She called Wisconsin’s voter ID law the strictest in the country.
“I do anticipate things being appealed, but we believe this is way too important to not challenge, both as a movement and in the courts,” she said.
Flanagan’s ruling scrambles months of planning by the GAB, which launched a pricey $436,000 ad campaign earlier this year to prepare voters.
“We will take steps to suspend enforcement and implementation of the photo ID provisions,” said GAB Director Kevin Kennedy in a statement. “We will communicate with local election officials and the public about the impact of this order.”
Voter ID — a contentious issue
Fifteen states have voter ID laws, and legislation in 31 states includes proposals to introduce voter ID laws or strengthen existing ones. Wisconsin passed its law last spring. Supporters, both on the state and national level, said it helps prevent voter fraud.
Opponents counter there’s few documented cases of wrongdoing. They also said minority groups are the most likely to face roadblocks in getting a valid ID.
The new law said voters must show either a state-issued ID card, valid driver’s license, U.S. passport, a student ID that expires within two years, or a military ID. Four lawsuits against it are pending, including two federal suits from the American Civil Liberties Union and a Washington, D.C.-based group called The Advancement Project.
Associated Press writers Scott Bauer in Madison and Dinesh Ramde in Milwaukee also contributed to this report.