Seventh Circuit Revives Wisconsin Voter ID Challenge


[Image via truthinmedia]

Wisconsin’s long-running battle over whether to require voter ID – and from whom – took another turn yesterday as the U.S. Seventh Circuit Court of Appeals ruled that a specific challenge to the law can continue and sent the case back to a trial court for further arguments. has more:

A federal appeals court has sided with groups arguing that Wisconsinites who face “daunting obstacles” to meet the state’s voter ID requirement should be able to vote without an ID.

The ruling, issued Tuesday by a three-judge panel in the 7th Circuit U.S. Court of Appeals, breathed life into a narrow legal challenge to Wisconsin’s voter ID law.

It likely means a federal judge will determine how to deal with voters unable to comply with the voter ID requirement, according to Larry Dupuis, legal director for the Wisconsin arm of the American Civil Liberties Union, one of the plaintiffs in the lawsuit.

Such voters include those who don’t have a photo ID, such as a driver’s license, to meet the requirement and can’t produce the documents, such as a birth certificate, to get a free ID from the state.

Dupuis said the ACLU doesn’t know how many people face such hardships, but the group estimates it is more than 1,500 in Milwaukee alone.

The appeals court had turned away a broader attack on the law in 2014, but noted in its opinion yesterday that this challenge was narrower and focused more squarely on would-be voters who not only do not have ID but face special difficulty in obtaining it:

The ACLU and the National Law Center for Homelessness and Poverty filed a federal lawsuit challenging Wisconsin’s voter ID law in 2011. The 7th Circuit U.S. Court of Appeals upheld the law in 2014.

But the groups pressed the suit, saying that some people face special obstacles to obtain the ID needed to vote under the law. The appeals panel on Tuesday told U.S. District Judge Lynn Adelman to address voting among certain groups:

+ Voters unable to obtain acceptable photo ID because of errors on birth certificates or other documentation.

+ Voters who need a credential from a government agency that won’t issue one until the state Department of Motor Vehicles first issues photo identification, which the DMV won’t do until the first credential has been obtained.

+ Voters who need a document that no longer exists, such as a birth certificate issued by an agency whose records have been lost in a fire.

+ The appeals panel also noted that in another state with a voter ID law, Indiana, voters “unable to obtain a complying photo ID for financial or religious reasons may file an affidavit to that effect” and have their vote counted on a provisional basis.

Johnny Koremonos, a spokesman for the state Department of Justice, said the ruling affirms the constitutionality of the voter ID law and affects only a “narrow” group of people: those who can’t obtain a free ID through the state Department of Transportation after “reasonable efforts.”

“Given the overwhelming success of the DOT program, and the fact that our State’s recent primary elections involved record turnouts, we are confident that we will prevail on the narrow issues that the Court remanded on,” he said.

Of particular note in the opinion is this passage which suggests that the appeals court sees merit in what’s known as an “as-applied” challenge to the law:

The argument plaintiffs now present is different. Instead of saying that inconvenience for some voters means that no one needs photo ID, plaintiffs contend that high hurdles for some persons eligible to vote entitle those particular persons to relief. Plaintiffs’ approach is potentially sound if even a single person eligible to vote is unable to get acceptable photo ID with reasonable effort. The right to vote is personal and is not defeated by the fact that 99% of other people can secure the necessary credentials easily. Plaintiffs now accept the propriety of requiring photo ID from persons who already have or can get it with reasonable effort, while endeavoring to protect the voting rights of those who encounter high hurdles. This is compatible with our opinion and mandate, just as it is compatible with Crawford [the 2008 Supreme Court case letting Indiana’s ID law stand]. Indeed, one may understand plaintiffs as seeking for Wisconsin the sort of safety net that Indiana has had from the outset. (p.4)

This is a significant development and reflects how the ID issue has evolved in the last few years, not just in Wisconsin but nationwide. Now, the fight is less about whether voters need to show ID and more about whether voters can get access to the ID they are required to show. Such concerns derailed ID in Pennsylvania and are the centerpiece of non-legal efforts by groups like VoteRiders who work with voters to get the ID they need to cast a ballot.

It will be interesting to see if the trial court is persuaded by the narrower challenge – and if so, if that decision survives appellate review. Just as significant, there are now less than seven months before Election Day – will the litigation run its course before then?

It’s a big deal … stay tuned.

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