A petition asking the Supreme Court to consider the fate of Wisconsin’s voter ID law begins with a powerful quote: “There is no right more basic in our democracy than the right to participate in electing our political leaders.” Yet, this quote may prove more revealing than the authors of this petition may have intended, as these words do not come from a court decision upholding the right to vote. Rather, they are the opening line of Chief Justice John Roberts’ decision in McCutcheon v. FEC, a case which made it easier for wealthy donors to influence elections.
The question facing the Supreme Court in Frank v. Walker, the Wisconsin voter ID case, cuts much closer to the “right to participate in electing our political leaders” than McCutcheon did. McCutcheon struck down a $123,200 cap on donations to federal candidates and political committees — a decision that, by its very nature, only benefited the very wealthy. Frank, by contrast, will consider to what extent illusionary concerns can justify restrictions on the right to vote itself. Yet, if the Roberts Court’s past is prologue, they are unlikely to pay the same regard for the actual right to vote that they do for the right of wealthy individuals to use their fortunes to influence elections.
The plaintiffs’ petition asking the Court to hear Frank was filed last month. Wisconsin’s response to that petition is due to the justices on Monday.
Frank presents two distinct legal questions: whether Wisconsin’s voter ID law violates the Constitution’s guarantee of equal protection of the laws and whether it violates the Voting Rights Act’s ban on racially discriminatory voting laws. And the plaintiffs challenging Wisconsin’s law present strong arguments in support of both claims. Among other things, they bring to the justices a district court’s finding that “approximately 300,000 registered voters in Wisconsin, roughly 9% of all registered voters, lack a qualifying ID,” and thus are currently unable to vote under the state’s law. Meanwhile, though the state tries to justify its voter ID law as necessary to prevent voter fraud at the polls, after two years of investigations, Wisconsin “could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past.”
So the law potentially disenfranchises hundreds of thousands of voters, based on their lack of an ID, yet it advances no other legitimate purpose in the process.
Additionally, the plaintiffs explain, “voter ID laws disproportionately burden the voting rights of African-American and Latino voters, who are more likely than White voters to lack qualifying photo ID.” Thus, the law falls within the Voting Rights Act’s ban on voting practices that result “in a denial of abridgement of the right of any citizen of the United States to vote on account of race or color.”
Yet, however strong the Frank plaintiffs’ arguments may be, they still must overcome the Supreme Court’s decision in Crawford v. Marion County Election Board, which allowed Indiana’s (somewhat less restrictive) voter ID law to go into effect. To distinguish this case, the plaintiffs point to the fact that they simply have much more evidence at their disposal than the Court did in 2008 when Crawford was decided — “Perhaps in 2008 the jury was still out on how frequently in-person voter impersonation fraud actually occurs. Seven years later, the verdict is in. This type of fraud is ‘more than a dozen times less likely [to occur] than being struck by lightning.’”
Nevertheless, expecting the conservative Roberts Court to strike down a voter ID law simply because the state is unable to produce any evidence justifying the law is a tall order. As a plurality of the Supreme Court admitted in Crawford, the record in that case contained “no evidence” of in-person voter fraud occurring “in Indiana at any time in its history.” Indeed, the Court’s plurality opinion was only able to cite a single example of such fraud occurring in the United States within the preceding 140 years! Yet the Court upheld Indiana’s law regardless.
It is possible, if not exactly likely, that new legal arguments or new evidence could persuade a Court to strike down Wisconsin’s law even though five of its current members were willing to let Indiana’s law go into effect in Crawford. The smart money, however, would not bet on the right to vote prevailing in Frank.