Schimel’s Southern Strategy on Voter Rights

Wisconsin Attorney General Brad Schimel dusted off an old and discredited “states’ rights” argument in his most recent court filing in the One Wisconsin Institute voting case.

In urging the Seventh Circuit Court of Appeals to stay last month’s decision by Judge James Peterson that overturned several elements of Wisconsin’s new voting laws, Schimel made several arguments.

Schimel’s most outrageous argument was an echo of an old George Wallace and Lester Maddox line that the state’s elected officials should hold sway over the authority of the judicial branch.

“Absent a stay, Wisconsin will be forced to conduct the next election under an election code that a district court rewrote, in violation of Wisconsinites’ right to govern themselves,” Schimel wrote.

One reason this segregationists’ echo rang loud and clear is because Judge Peterson threw out part of Wisconsin’s election code on the grounds that it was, in Schimel’s own words, “allegedly motivated by racial animus.”

Surely, Schimel knows that a federal judge has the authority to find state laws unconstitutional. And whenever a judge does that, the judge can be labeled by some demagogue as interfering with the work of state officials, or, as Schimel put it in this instance, “Wisconsinites’ right to govern themselves.”

But that right is not unconditional. Wisconsinites, or more precisely, their elected officials, do not have the right to violate the Bill of Rights or other elements of the Constitution. They can’t establish a state religion or ban freedom of the press, for instance. One of the reasons we have federal judges, after all, is to determine whether elected officials are overstepping their bounds.

Schimel disgraced his office by putting forward such a shabby argument.

Late on Monday, August 22, a three-judge panel of the 7th Circuit Court of Appeals in Chicago decided not to stay Judge Peterson’s decision, thus handing Schimel a defeat.

Matthew Rothschild is executive director of the Wisconsin Democracy Campaign.