By M.D. Kittle | Wisconsin Reporter
MADISON — A Dane County judge on Monday invalidated Wisconsin’s voter ID law, declaring unconstitutional its provision that all voters show up at the polls with approved photo identification.
While state Attorney General J.B. Von Hollen vowed to appeal Dane County Circuit Court Judge Richard Niess’ decision blocking the law, the ruling — for now — puts on ice a law heralded by supporters as a critical tool against voter fraud and decried by opponents as a means of disenfranchising a class of voter.
Whether the rulings of two lower courts can survive expected challenges was a matter of much debate.
The League of Women Voters of Wisconsin, which brought the lawsuit, was in a celebratory mood.
“The judge found that the suffrage provision of the Wisconsin Constitution, Article III, does not give the legislature the power to enact a voter identification provision that has the effect of disenfranchising otherwise qualified voters merely because they lack one of the limited forms of acceptable identification,” the Madison-based voting rights advocacy group said in a statement.
Von Hollen and fellow Republicans sounded defiant in response.
“Wisconsin’s voter ID law is consistent with the (state) constitution, and I will appeal this decision,” the attorney general said in a statement.
Von Hollen also asked Dane County Circuit Court Judge David Flanagan stay his injunction temporarily stopping enforcement of the law, pending appeal. Flanagan made the ruling last week.
Dana Brueck, spokeswoman for the attorney general, told Wisconsin Reporter that no appeal had been filed as of Monday afternoon.
“We’re confident Wisconsin’s current voter identification law will be upheld during all 2012 elections,” said Ben Sparks, spokesman for the Republican Party of Wisconsin.
In his decision, Niess wrote that Act 23, the voter ID law, does not fall within the powers of the Legislature and the governor to enact election laws.
The ruling pointed to amicus briefs from sympathetic groups such as the Wisconsin Democracy Campaign, which demonstrate the “very real disenfranchising effects of Act 23’s photo ID requirements. They show that many constitutionally qualified electors from all walks of life will be blocked from voting at the polls by Act 23.”
Rick Esenberg, adjunct law professor at Marquette University, said the judge’s ruling will have a hard time holding up on appeal.
“Courts have allowed legislatures to have more leeway in setting those rules” of election law, said Esenberg, who also serves as president and general counsel of the Wisconsin Institute for Law & Liberty. The group is a nonprofit, nonpartisan organization, that files litigation in "the areas of property rights, the freedom to earn a living, voting rights, regulation, taxation, school choice, and religious freedom," according to its website.
Esenberg said just because a law makes it marginally more difficult to vote doesn't mean that it has to pass the rigorous scrutiny of the state constitution. If that were so, Esenberg said, voting on a weekday could be construed as difficult for some people, as would the fact that Wisconsin requires some level of residency identification for voter registration.
The argument from voter ID opponents, Esenberg said, centers on the fact that a number of people currently lack a photo ID. He said the legal question ultimately cannot be who “currently” lacks an ID, but who would not have access to one, or what obstacles would be in their way if they attempted to get one.
That was the main point of contention in Indiana, one of 15 states that requires photo ID to vote, according to the latest information from the National Conference of State Legislatures.
“The group of people that are potentially adversely affected shrinks and shrinks and shrinks,” said Dale Simmons, co-legal counsel Indiana Election Division, which oversees Indiana election. “Our District Court here said, ‘Where is the person?’ They (voter ID opponents) said, ‘Well they exist. Statistically there so many people who don’t have a driver’s license.’”
But statistically existing and having an actual encumbrance to voting are two different things, Simmons said, and the courts agreed.
Indiana’s law was challenged both at the state Supreme Court and U.S. Supreme Court levels. The state won both cases handily.
“Both courts said, ‘Where’s the beef? Where’s your plaintiff?’”, said Simmons, who said his political leanings are Republican but that the state Supreme Court is a mix of Republicans and Democrats.
But Indiana’s voter ID has a “pressure release valve” that allows its voters to fill out a provisional ballot, more time to acquire a photo ID, and more ways to get out of having to possess one for voting, said Charley Jacobs, assistant professor of Judicial Process and American Politics at St. Norbert College in De Pere.
“Wisconsin doesn’t, and both judges have noted that is creating a whole new class of people disenfranchised, which is not constitutionally permitted,” he said.
“I suspect the (Walker) administration will have a hard time overcoming some of the arguments in this case.”
Two other lawsuits on the constitutionality of Wisconsin’s voter ID law are pending in federal court.