Wisconsin Supreme Court Upholds Voter ID Under State Law

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[Image courtesy of teachingamericanhistory]

Yesterday, a divided Wisconsin Supreme Court upheld the state’s voter ID law against a state constitutional challenge, resolving one thread of cases but leaving the law still unenforceable due to a federal court decision. The Journal-Sentinel has more:

A divided state Supreme Court on Thursday tweaked a provision of Wisconsin’s voter ID law to put it in keeping with the state constitution, making it easier for people to get identification cards without having to pay along the way.

Despite Thursday’s rulings in two challenges of the law, the requirement to show photo identification at the polls remains blocked because a federal judge in April found Wisconsin’s voter ID law violates the U.S. Constitution and federal Voting Rights Act. That decision is now under review by the U.S. 7th Circuit Court of Appeals in Chicago.

In both cases, the Court found that the law was justified because of fraud concerns, though Rick Hasen and others argue that the Court’s evidence for that point is questionable. The Court ruled 5-2 against a challenge by the League of Women Voters, finding that voter ID did not create an additional qualification for voting in violation of the state constitution:

That case hinged on a provision of the state constitution that says people can vote if they are 18 or older, U.S. citizens and residents of Wisconsin. Beyond that, the league contended, the state constitution allows the Legislature to exclude felons and mentally incompetent people from voting but not other classes of people.

The league argued the voter ID law was unconstitutional because it created a new category of people who could not vote — those who didn’t possess the types of identification specified in the voter ID law.

But the Supreme Court determined requiring a photo ID to vote does not amount to a qualification for voting and “is a reasonable regulation that could improve and modernize election procedures, safeguard voter confidence in the outcome of elections and deter voter fraud.”

In the other case brought by the NAACP, by a 4-3 decision the Court created a “saving construction” that addresses concerns that voter ID imposes a de facto poll tax on voters:

People can get free ID cards for voting from the state, but they have to produce certified copies of their birth certificates — which cost $20 apiece in Wisconsin — to get them. The majority saw that as a problem.

“The modest fees for documents necessary to prove identity would be a severe burden on the constitutional right to vote not because they would be difficult for some to pay. Rather, they would be a severe burden because the State of Wisconsin may not enact a law that requires any elector, rich or poor, to pay a fee of any amount to a government agency as a precondition to the elector’s exercising his or her constitutional right to vote,” Justice Patience Roggensack wrote for the majority in a case brought by the Milwaukee branch of the National Association for the Advancement of Colored People.

To keep the law intact, the majority rewrote the state’s administrative code to require the DMV to issue photo ID without requiring a birth certificate or other documents that require fees.

“As the (U.S.) Supreme Court has explained, it is best to ‘limit the solution to the problem’ rather than enjoining the application of an entire statute due to a limited flaw,” the majority stated.

The majority left DMV administrators with some discretion on when to issue voter ID cards without birth certificates or other documents. That opens the possibility for more legal disputes.

This new approach has advocates frustrated and will almost certainly lead to more litigation on the issue:

How th[is] would work is unclear. The ruling requires the state Division of Motor Vehicles to give out IDs to those who can’t afford birth certificates and other documents, but provides no guidance to how officials could determine people are who they say they are without such documentation.

“I am confounded by that, by the saving construction, because there are no standards for how to apply it,” said Madison attorney Lester Pines, who represented the League of Women Voters of Wisconsin in one of the voter ID cases.

With the state challenges resolved (for now), all eyes turn to the appeal of the federal case, now pending in the 7th Circuit and which was recently joined by the U.S. Department of Justice, who filed an amicus brief arguing that the Wisconsin ID law violates both the Constitution and Section 2 of the Voting Rights Act. Still, the state believes its victory yesterday will help them on appeal:

State Attorney General J.B. Van Hollen, who defended the law, said he believed Thursday’s rulings strengthened his hand in the federal litigation and he would use them to try to reinstate the voter ID requirement in time for the Nov. 4 election.

In short, very little has changed: the ID law is still blocked, and both sides are prepared to fight on – likely all the way to the U.S. Supreme Court – to settle the matter.

It’s still ON, Wisconsin … stay tuned.

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