While legislation and litigation swirled across the country during the Spring of 2014 involving Photo ID requirements for voting, four cases challenging the validity of Wisconsin’s Photo ID law, 2011 Wisconsin Act 23, reached critical stages in Wisconsin state and federal courts.

On April 28, following a two-week trial in November 2013, U.S. District Court Judge Lynn Adelman issued a sweeping 90-page Decision and Order in two cases, Frank v. Walker and LULAC v. Deininger, permanently enjoining Act 23 as violative of the right to vote under both the federal constitution and the Voting Rights Act. In the context of a national outcry that photo ID laws suppress the votes of certain vulnerable constituencies, Judge Adelman’s decision has historic significance in that it represents the first occasion that a federal court enjoined a state’s photo ID law under Section 2 of the Voting Rights Act. Section 2 prohibits electoral procedures anywhere in the country which result in reduced opportunities for minority voters to “participate in the political process and elect representatives of their choice,” 42 U.S.C. 1973(b), and was unaffected by Shelby County v. Holder, 570 U.S. __ (2013), which invalidated critical preclearance provisions of the Voting Rights Act applicable primarily to southern states.

Prior to Judge Adelman’s ruling, Act 23 had been enjoined since March 6, 2012, when Dane County Circuit Judge David Flanagan issued a preliminary injunction in Milwaukee Branch of the NAACP v. Walker, finding it likely that the photo ID requirement violated Art. III, Sec. 1 of the Wisconsin Constitution by unreasonably burdening the right to vote for hundreds of thousands of qualified electors – including disproportionate numbers of minority, elderly, and disabled persons – who lack the requisite forms of government photo ID. Following a weeklong trial in April of 2012, Judge Flanagan issued a Decision and Order imposing a permanent injunction. The NAACP case, and another challenge to the law under Art. III, Sec. 2 of the state constitution, League of Women Voters v. Walker, were orally argued before the Wisconsin Supreme Court on February 25, and a decision in the two cases is imminent.

Bottom line for Wisconsin Photo ID survival —- both the Wisconsin Supreme Court and a federal appeals court must now reverse these two well-reasoned decisions, each based upon comprehensive trial testimony from highly regarded political scientists, election administrators, and scores of voters. Construing separate constitutional provisions, the foundation of Judge Flanagan’s and Judge Adelman’s decisions are remarkably similar. Relying upon different experts and witnesses, both jurists independently arrived at the following factual and legal conclusions:

•  Over 300,000 qualified Wisconsin voters – roughly 9% of the electorate – lack an Act 23-acceptable photo ID.;

•  Among these 300,000 electors, the non-possession rates of minority voters and other less advantaged voting constituencies (e.g., low-income, elderly, and disabled) are disproportionately higher by significant margins. For example, Judge Adelman found that black voters are 1.7 times less likely to have Act 23 acceptable photo ID than whites, and Latinos 2.6 times as likely as whites to lack ID. Judge Flanagan found that 25% of voters over the age of 80 lack Act 23-acceptable photo ID.

•  Obtaining a state-issued photo ID can be a challenging, time-consuming, and complex task involving significant expenditures of money, in addition to the $20 fee for a birth certificate which is a material pecuniary burden, especially for indigent voters.

•  Photo ID neither prevents nor deters vote fraud. Voter impersonation is the only type of vote fraud prevented by photo ID, and no person in Wisconsin has ever been convicted or even prosecuted for impersonating another voter.

•  The Crawford decision by the U.S. Supreme Court, which upheld Indiana’s photo ID requirement, does not control the legality of Wisconsin’s Act 23. Crawford was predicated upon a flawed and scanty factual record (as the author of the 7th Circuit decision below, Judge Richard Posner, so noted in his recent book Reflections on Judging, and in a subsequent New Republic posting). The appropriate test for the constitutionality of Wisconsin’s photo ID law remains the U.S. Supreme Court’s Anderson/Burdick balancing, or sliding scale, test which invalidates a voting law when the state’s interests do not justify the burden the law imposes on voters, including discreet subgroups.

Wisconsin in the National Context

Legal battles over the validity of photo ID are playing out in at least a dozen other states besides Wisconsin. Just last week, state judges in Pennsylvania and Arkansas enjoined state voter ID provisions. In Pennsylvania, Commonwealth Judge Bernard McGinley enjoined that state’s photo ID law, holding that it violated the state’s constitutional right to vote and that its implementation violated the statute’s own “liberal access” requirements. In Arkansas, a state trial judge last week also enjoined photo ID declaring it a violation of voters’ rights under the state constitution. Of great significance, Judge Adelman’s decision upholding voter claims under Section 2 of the Voting Rights Act provides impetus for current and future challenges, such as those currently being waged by the U.S. Department of Justice in pending cases challenging the photo ID laws of Texas and North Carolina under Section 2. The creation of strong trial records demonstrating the discriminatory impact of photo ID laws and resulting diminished opportunities for minority voters to participate in the political process poses great promise in the fight to defeat photo ID.

Richard Saks represents the plaintiffs in one of the pending state cases, Milwaukee Branch of NAACP et al v. Walker, 2012 AP 1652, and argued the case on February 25 before the Wisconsin Supreme Court.Attorney Saks also reviewed the impact of Judge Adelman’s decision on the Sunday news show, UpFront with Mike Gousha. You can see a replay of that show here.

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