SCOTUS Upholds Wisconsin Voter I.D. Law

by Michael Handley

The U.S. Supreme Court today rejected a challenge to Wisconsin's voter photo identification law. The Court's decision, today, to affirm Wisconsin's voter photo identification law, may foretell the Court's eventual decision on Texas' voter ID law.

On Friday, U.S. Supreme Court Justices discussed whether to hear a challenge to Wisconsin’s strict voter ID law, which a federal appeals court upheld last fall.  The law was briefly in effect for the February 2012 Wisconsin primary election, but it has been blocked by court action since then.

A federal district judge in Milwaukee, Lynn Adelman, declared the law unconstitutional in a decision last April and blocked enforcement of the law.

In October, a three-judge panel of the 7th Circuit overturned Adelman's decision, but the U.S. Supreme Court immediately stayed the 7th Circuit's order that Wisconsin could enforce the law.

The law has remained on hold while plaintiffs appealed the 7th Circuit's decision to the U.S. Supreme Court. The ACLU filed a motion in January to the U.S. Supreme Court appealing the 7th U.S. Circuit Court’s ruling, but the Supreme Court today declined to accept the ACLU appeal.

The Supreme Court’s decision today clears the way for Wisconsin to enforce its voter photo identification law.

The challenge to the Wisconsin law is the first of the current round of cases to reach the Supreme Court after a full trial and appellate review, including the appellate process for the Texas voter ID case Veasey v. Abbott.  The Wisconsin law is similar to, but slightly less restrictive than, the Texas' voter I.D. law.

Seven years ago, in Crawford v. Marion County Election Board, the court rejected a constitutional challenge to Indiana’s voter ID law in an opinion by Justice John Paul Stevens. The vote was 6 to 3. The Indiana law was new and had not yet taken effect. In fact, the idea of requiring voters to prove their identity with a government-issued ID with photograph was new - only Georgia and Indiana had enacted such a law. The argument of the Indiana plaintiffs was that the law would arbitrarily disenfranchise qualified voters who lacked the required identification, and that the burden would fall disproportionately on voters who were poor, elderly, or members of racial minorities. In addition, they maintained, there was no evidence that in-person voter fraud was a problem in the first place.

In 2007, Richard A. Posner of the United States Court of Appeals for the Seventh Circuit wrote the appellate court decision that the Supreme Court affirmed, upholding Indiana’s law. But in a 2013 book, Reflections on Judging, he wrote that he had been wrong. “I plead guilty,” he wrote, for having failed to see the law “as a means of voter suppression rather than of fraud prevention.”

Judge Posner, who still sits on the 7th U.S. Circuit Court, called the 7th Circuit's three-judge panel October decision in favor of Wisconsin's voter ID law a serious mistake and argued for a rehearing by the full 10-member appeals court. Judge Posner's motion failed on a 5-to-5 tie. In a 31-page opinion, signed by the four other judges who sought rehearing, Judge Posner laid out the case against the Wisconsin law.

There was “compelling evidence that it abridges the right to vote without justification,” Judge Posner wrote of the Wisconsin law, which he said was “importantly dissimilar” from the Indiana law in permitting fewer types of identification and in making it harder to cast absentee ballots. What seemed most significant to Judge Posner was what he called the “changed political culture in the United States” in the years since the Supreme Court took a benign view of voter ID. “All the strict photo ID states are politically conservative,” he wrote, illustrating the point with a map and a “political makeup” list of the nine strictest states, all with Republican legislatures. The claim that photo ID was necessary to deter or catch voter-impersonation fraud was, Judge Posner wrote, “a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government.”

He added: “As there is no evidence that voter-impersonation fraud is a problem, how can the fact that a legislature says it’s a problem turn it into one? If the Wisconsin Legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials?”

Does the Supreme Court's decision, today, to affirm Wisconsin's voter photo identification law, foretell the ultimate outcome on the appeal to the U.S. 5th Circuit Court of Appeals of U.S. Southern District Court Judge Nelva Gonzales Ramos' finding that Texas' voter ID law is discriminatory? Time will tell, but the answer is probably yes.

Background on the Texas voter ID case at:

• Selma and Texas' Discriminatory Voter I.D. Law
• Texas Voter I.D. Trial
• Voter Registration and I.D. Requirements
• Democrats may have lost the restrictive voter I.D. battle, but the war over voting isn’t over
• Voter I.D. Fight Lost for Now, Now Dems Can Focus on Doable Reforms