By Kevin Binversie | Wisconsin Reporter

Kevin Binversie

With recent legal triumphs in Pennsylvania and Virginia filling their sails, supporters of voter ID in Wisconsin hope they can revive the Badger State’s law, now stalled in the courts.

Earlier this year two Dane County judges ruled the law violated the Wisconsin Constitution. Plaintiffs who hoped to kill the law went through state courts to avoid a head-on collision with the 2008 U.S. Supreme Court case Crawford v. Marion County Election Board. That ruling upheld Indiana’s voter identification law.

As part of the Dane County ruling, an injunction has barred the law’s enactment.

On Tuesday, Wisconsin Attorney General J.B. Van Hollen announced he was asking the state’s high court to take up the case before the November general election. Opponents of the voter ID law say Van Hollen is overstepping his authority and promoting partisan ambitions for what could be another tight presidential election for the Badger State, one mirroring those in 2000 and 2004.

“Normally, you’d have a Circuit Court decision and then it would go to the court of appeals,” said Rick Esenberg, president of the public interest law firm the Wisconsin Institute of Law and Liberty. “Now Van Hollen has moved to consolidate the two (Circuit Court cases) and bypass the appeals courts by trying go straight to the state Supreme Court.”

“From there, the timetable for hearing the case is completely up to the high court,” said Esenberg.

After the April ruling in Dane County, two state District Court of Appeals branches asked the state’s high court to take up the case immediately. The seven justices refused this request outright in an unsigned order.

If the high court doesn’t accede to Van Hollen’s request, the fate of state’s voter ID law may not be decided until 2013.

Over the past year and a half, the court’s reputation has suffered severe hits with the public. Wisconsinites have seen behind the scenes fights — ideologically and literally — become public squabbles.

Few court watchers believe the court is afraid of the any knotty legal issues associated with the law. More likely, they’re eager to avoid intense — and organized — political controversy surrounding not just their decision but the entire jurisprudential process.

But it’s not the duty of the high court to care about what the public thinks about its reputation. Its chief duty is the judicial review of laws passed by the Wisconsin Legislature. How the court believes it cannot intervene in deciding the constitutionality of the state voter ID law is a dereliction of duty. Neither justice, nor the law should be held hostage by the politics of the day.

As for the law itself, it is hard to see how the lower courts’ decisions will survive the appeals process. The measure’s authors took painstaking steps to cover as many Wisconsin residents as possible and even required state Department of Motor Vehicle locations to provide free voter IDs to those who lack them.

Perhaps the best predictor of Wisconsin’s voter ID law is in Pennsylvania. Opponents of the Keystone State’s law challenged the law in state courts, believing they had a better chance there than in federal courts.

The chief plaintiff in their case is Vivette Applewhite, a 93-year-old retiree from Philadelphia who was adopted as an infant. A paperwork mix-up decades ago produced birth certificate and adoption records with different names. Despite impassioned testimony, Pennsylvania Judge Robert Simpson ruled last week that not only did the plaintiffs lack evidence in their claims of widespread voter disenfranchisement, but the law offered numerous ways for those who lacked identification to obtain it.

The judge wasn’t kidding that other options were available. On the very day the plaintiffs’ attorneys announced they were going to appeal to the Pennsylvania’s state Supreme Court, Applewhite received her free voter identification card.

Thursday, Pennsylvania’s high court agreed to hear the appeal of the lower court’s ruling. There’s no reason whatsoever for Wisconsin’s high court to not follow that example.

Veteran political blogger Kevin Binversie is a Wisconsin native. He served in the George W. Bush administration from 2007-2009, worked at the Heritage Foundation and has worked on numerous state Republican campaigns, most recently as research director for Ron Johnson for Senate. Contact him at kevin.binversie@franklincenterhq.org.