Wisconsin Voter Suppression Wins One Round, But Not The Battle

Last year, two state courts in Wisconsin deemed unconstitutional the state’s law requiring photo identification to vote and blocked enforcement of the law, joining other courts around the country that deemed the new round of vote-suppressive laws as infringing on the right to vote. On Thursday, a Wisconsin appeals court overturned one of those rulings. And while the decision could potentially pave the way for upholding the law overall, the three-judge majority in this case took pains to make clear that their ruling is limited to this case only. In the meantime, the law will remain blocked while appeals proceed on several other challenges to the law.

The League of Women Voters challenged the law as unconstitutional on its face, reasoning that it violates the state Constitution’s suffrage provision by creating a new class of people excluded from voting — those without identification. The court rejected this argument and held that, without other constitutional arguments and/or particular evidence that the photo ID requirement will impose a particular burden, the court could not reject the law. They write:

[W]e emphasize that we do not mean to suggest that, assuming that the constitutional “reasonableness” test applies in this context, no identification requirement for potential voters that the legislature might enact could run afoul of either a facial or an as-applied challenge under Article III. Here, we conclude only that the League has not shown beyond a reasonable doubt that the photo identification requirement is, on its face, “so difficult and inconvenient as to amount to a denial” of the right to vote.

In the end, both the League’s argument as to why the photo identification requirement is, on its face, an unconstitutional “additional qualification,” and the League’s implicit argument that the requirement is constitutionally “unreasonable” under Article III, are not easy to pin down, particularly in light of its concessions. In any case, however, the League fails to make a persuasive argument under the correct legal test and substitutes a nebulous “too onerous” test that lacks meaningful content in this facial challenge.

Perhaps the most illuminating part of the decision comes in an extended footnote, in which the court points out that the other challenge pending in state court provides “fact-based evidence” that is lacking in the present case. They also note that even a U.S. Supreme Court case on a similar challenge to a voter ID law did not apply in this case, because that case makes different arguments that a photo ID requirement violates the U.S. Constitution’s Fourteenth Amendment, and “substantially burdens the right to vote.”

All of this signals that at least these three judges would have been more amenable to the other state court challenge on its way, as well as other challenges that provide more evidence of photo ID’s impact. As the Milkwaukee Journal-Sentinel reports, two federal court challenges are also pending, but on hold while the state court cases continue.

After these state court rulings blocked the voter ID law last year, now-Wisconsin Assembly Speaker Robin Vos (R) sought to amend the state’s Constitution law to allow it. Nationwide, studies have found voter ID can disfranchise between 2 and 9 percent of voters, particularly minorities, while the only purpose of requiring the ID is to combat almost nonexistent in-person voter fraud. In Wisconsin, a study found that only 0.00023 percent of votes are the product of such fraud.

Other voter suppression proposals pushed by some state Republicans included eliminating the popular same-day registration program — likely one of the reasons for the state’s remarkable 70.1 percent turnout rate – and replacing a nonpartisan Government Accountability Board with political appointees.