By Sarah Wiley
Like many other states, Wisconsin has recently enacted a voter ID law. After winning both the state legislature and the governor’s office in 2010 (a wave year for Republicans), the Wisconsin GOP quickly acted to restrict voting. Governor Scott Walker quickly signed the bill, claiming it was about the integrity of our electoral process, saying “to me, something as important as a vote is important … whether its one case, 100 cases or 100,000 cases.”
Voting rights groups, on the other hand, pointed out that in-person voter fraud (what the law claims to address) is exceedingly rare. They claimed that the real purpose of the law was to discourage voting among constituencies which tend to vote Democratic.
ACLU Voting Rights Project Director Dale Ho has been at the forefront of the fight against Wisconsin’s law. Ho said that 300,00 or more Wisconsin voters lack the required ID, and that to allow them all to vote 6,000 IDs would have to be issued every day, a practical impossibility. The Advancement Project agreed that getting all the required IDs out would be “mathematically impossible.”
While many states are in the midst of litigation over voter ID issues, the Wisconsin case is especially pertinent, since it involves a hotly contested gubernatorial race and could the ID rules in place could sway the election.
In an interesting course of litigation, the law was challenged by the ACLU, the Advancement Project, and the League of United Latin American Citizens of Wisconsin. District Court Judge Lynn Adelman struck the law down, saying it unconstitutionally burdens poor and minority citizens who may not have acceptable IDs.
Then the Seventh Circuit Court of Appeals reinstated the law, saying “the State of Wisconsin may, if it wishes … enforce the photo ID requirement in this November’s elections.” A three judge panel, all of whom were Republican appointees, heard the appeal. The decision does not require Wisconsin to implement the law, simply allows it to. However, the state seems intent on doing just that.
Kevin Kennedy, the state’s top election official confirmed that Wisconsin is “taking every step to fully implement the voter photo ID law for the November general election,” and said that his office was focused on communicating with localities and voters about the new requirements.
In oral arguments Wisconsin Assistant Attorney General Clayton Kawski made an argument typical to proponents of voter ID laws and pointed out that he needed to show an ID to get into certain buildings (such as the court house) or onto an airplane, and since voting is far more important, it seems natural that ID be required.
Judge Frank Easterbrook, one of the judges in the Seventh Circuit panel noted that 2.4 percent of white Wisconsinites couldn’t get the required ID, as opposed to 4.5 percent of blacks. Noting that it was only two percent disparity, he wondered if the gap was enough to call the law discriminatory. But University of Washington Professor Matt Barretto, who testified in the case, sees it differently. He explained that African Americans are 182 percent more likely to lack an acceptable ID than whites, and Latinos are 206 percent more likely. Looked at through this lens, there seems to be a clear discriminatory effect, if not intent.
Voting rights advocates immediately requested a full court hearing, hoping to overturn the three judge panel’s decision. An evenly divided court declined to take the case on September 26. No explanation for the decision was given. The three judge’s from the panel were joined by two other Republican nominees in declining to take the case, while two Republican appointees and three Democratic ones voted for a rehearing.
Ho disparaged the decision, saying that “allowing this law to take effect so close to the midterm election is a recipe for chaos, voter confusion and disenfranchisement.”
After the Seventh Circuit declined to rehear the case, voting rights advocates began working hard trying to get photo IDs to as many voters as possible before November 4’s election. Additionally, the ACLU and the Advancement project filed a petition for an emergency stay with the United States Supreme Court on October 2.
On October 9, they got their answer. The Supreme Court agreed to grant the requested say in a one page opinion by a six to three vote. The three most conservative justices, Scalia, Alito and Thomas dissented. The state of Wisconsin has 90 days to request that the Court hear the case and potentially reinstate the law, but it seems highly unlikely that the law will be reinstated before the November elections, which are less than a month away.
League of United Latin American Citizens general counsel Luis Roberto Vera, Jr. responded to the ruling saying “you can call it the perfect storm against voter ID.”