Federal Judge Adds Affidavit Exception to Wisconsin Voter ID

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[Image via Hispanically Speaking News]

Wisconsin’s long-running voter ID saga took another turn yesterday as a federal judge ruled that the state must offer affidavits to voters who encounter difficulties obtaining necessary ID documents. The Milwaukee Journal-Sentinel has more:

Paring back the state’s voter ID law four months before the presidential election, a federal judge ruled Tuesday that Wisconsin voters without photo identification can cast ballots by swearing to their identity.

The decision by U.S. District Judge Lynn Adelman in Milwaukee creates a pathway for voters with difficulties getting IDs who have been unable to cast ballots under the state’s 2011 voter ID law.

“Although most voters in Wisconsin either possess qualifying ID or can easily obtain one, a safety net is needed for those voters who cannot obtain qualifying ID with reasonable effort,” Adelman wrote in his 44-page decision.

The judge issued his preliminary order because he found that those arguing for a pathway for some voter without IDs were “very likely” to succeed.

The ruling will allow voters to use affidavits instead of IDs to vote in the Nov. 8 presidential election. But this new system will not be in place for the Aug. 9 primary for congressional and state legislative races because Adelman determined election officials needed more time to implement it.

The ruling focused on the difficulties some voters have experienced in obtaining ID in Wisconsin:

In Tuesday’s decision, Adelman wrote he was trying to prevent disenfranchising “voters who cannot obtain ID no matter how hard they try,” though his ruling would apply to a larger class of voters.

Those who don’t have IDs will be able to vote by going to polling places and signing forms saying they can’t easily get IDs. The system is to be available to anyone who, to get an ID, “would have to do more than retrieve a birth certificate and related documents from his or her desk drawer and make a single trip to the (Division of Motor Vehicles).”

That would include those who don’t have birth certificates, have mistakes on their birth certificates or have health problems that prevent them from traveling to DMV centers. Voters themselves will determine whether getting an ID would require more than a reasonable effort.

Adelman’s decision described instances in which those who don’t have IDs were caught in a bureaucratic limbo.

One was directed by DMV officials to track down adoption papers and court papers from Tennessee. Another was told to request a name change through the federal Social Security Administration. A third voter over three months had to speak with a DMV investigator nine times, make two trips to a DMV center and call other agencies to locate documents.

This spring, [Wisconsin Governor Scott] Walker’s administration made changes to how it handles requests for IDs for those who have the most difficulty in getting them because they lack birth certificates or have trouble getting copies of them. That new system provides people with temporary documents that would allow them to vote.

But Adelman found that system did not go far enough, saying bureaucratic mistakes were inevitable and that they would disenfranchise some eligible voters.

Adelman’s injunction is just the latest twist in the lengthy legal fight over whether or not Badger State voters should have to show ID to vote. As usual, Rick Hasen has the best snapshot in his post at Election Law Blog:

Judge Adelman, who wrote today’s decision in Frank v. Walker, was the same judge who initially ruled that the entire law was unconstitutional and a violation of the Voting Rights Act. That ruling was overturned on appeal by a 7th Circuit panel, led by Judge Frank Easterbrook, and the 7th Circuit divided 5-5 over whether to take the case en banc (including on the question of emergency relief) over strong dissents from among others, Judge Richard Posner. The ACLU then petitioned the Supreme Court to take the case (a decision which was controversial at the time, when Justice Scalia was still on the Court and the chances of a 5-4 affirmance rather high), but the Supreme Court declined to hear the case. Plaintiffs then went back to the district court and asked for some as-applied relief, for those voters who faced special burdens in getting voter id. Judge Adelman first ruled that he had no authority to do that given the earlier 7th Circuit opinion, but then Judge Easterbrook, for the 7th Circuit panel said that the 7th Circuit’s first opinion did not preclude this relief, and Judge Adelman should consider it. He did, and today’s ruling is the product of that ruling.

As the Journal-Sentinel reports, there is another challenge to the ID law currently pending:

A separate lawsuit in federal court in Madison is seeking to show that Republicans adopted voter ID and other laws over the past five years with the goal of benefiting their party and making it harder for minorities to vote.

That lawsuit by two liberal groups, One Wisconsin Institute and Citizen Action of Wisconsin Education Fund, also challenges limits on early voting, a requirement that voters establish residency 28 days before voting, the elimination of straight-ticket voting and other changes to voting rules approved since 2011.

U.S. District Judge James Peterson is expected to rule in that case soon. At closing arguments last month, he said there were few clear guidelines for how to rule on parts of a challenge to Wisconsin’s voting rules and also questioned how much of an effect the state’s voter ID law has had on elections.

In the meantime, the state is deciding on an appeal and the newly-constituted Wisconsin Elections Commission (which had just started running a public education campaign on voter ID) is preparing for its next moves:

The decision could provide the first big test for Wisconsin’s newly created state Elections Commission, composed of three Democrats and three Republicans.

Republican lawmakers created the commission to replace the state Government Accountability Board, a group of six former judges that has been responsible for running elections for the last eight years.

The Elections Commission will be responsible for making sure local election clerks print blank affidavits and have them available at each polling place. The commission will also be responsible for making sure the public knows about the ability to vote by affidavit if they don’t have IDs.

Commission spokesman Reid Magney said the agency would consult with the state Department of Justice to ensure it complies with the court order. He said he expected the ruling to affect a relatively small number of voters.

What’s next? Hasen has a nice summary of what’s at stake:

The question remains whether the 7th Circuit will agree with this remedy should the state of Wisconsin choose to appeal. Here, there are two issues. First is one of timing. Changes too close to the election appear to be frowned upon under the Purcell Principle. The judge was cognizant of that, not requiring the affidavit option for the August election but requiring for November. I think we are far enough out from November that this does not come too late. The other, more serious question is the scope of the remedy. It could well be that the 7th Circuit was imagining a much more limited remedy, such as allowing individual voters to get an administrative hearing or court order to get id rather than offering the affidavit to all. Or the 7th Circuit might believe the class of voters who should be offered an id must be much narrower, such as those who have tried to go the DMV route but who have been successful. It is not clear to me whether or not the 7th Circuit will agree that the remedy is too broad here … And then if the 7th Circuit reverses and time is getting shorter, what does a 4-4 SCOTUS do? That’s an interesting question.

This is an important case – not just in Wisconsin, but also nationally as the courts continue to work through the impact of voter ID laws as well as the procedure for handling legal challenges as Election Day approaches. Make sure you’ve bookmarked Hasen’s blog – and stay tuned …

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