Wisconsin: After Frank v. Walker

Wisconsin: after Frank v. Walker, a new case — One Wisconsin Institute v. Nichol — was filed on May 29^th, 2015 to challenge Wisconsin’s election laws again.

By: Lisa Zhang

In a recent complaint filed by One Wisconsin Institute, Citizen Action of Wisconsin Education Fund, and six Wisconsin residents, plaintiffs challenged several Wisconsin voting provisions, including 2011 Wisconsin Act 23. I previously discussed the Equal Protection challenges made in this case in an earlier post. Below is an analysis of the case’s challenge under Section 2 of the Voting Rights Act (VRA).

Part II. Section 2 violations:

Plaintiffs raised the following challenges under Section 2 of the Voting Rights Act:

1. Wis. Stat. §§ 6.855–.86 limited early voting to a single location per municipality. These provisions do not permit Wisconsin’s largest cities to have more early voting locations than the state’s smallest municipalities, causing per early voting location in municipalities to have hundreds of thousands more voters than per early voting location in smaller cities.
2. 2011 Wis. Act 23, §§ 57, 96, Wis. Stat. § 6.86(1)(b), and 2013 Wis. Act 146 reduced early voting period from as many as 30 days to a 12-day period, limiting the options that individuals have for voting.
3. 2011 Wis. Act 23, §§ 17, 29, 40–41 and 2013 Wis. Act 182, § 2H eliminated the corroboration and expanded proof-of-residence requirement. These provisions do not allow  a person to vouch for the residence of another as an alternative to providing documentary proof of residence for voter registration, and require all voters other than overseas and military voters to provide documentary proof of residence.
4. 2011 Wis. Act 23, § 26 removed the authority from GAB (Wisconsin Government Accountability Board) to appoint statewide special registration deputies. Previously, a statewide special registration deputy was able to register any Wisconsinite who was eligible to vote. Now, individuals who become special registration deputies can only register voters from the specific municipality in which they have been authorized to register voters.
5. 2011 Wis. Act 23, §§ 10–12 increased residency requirements for voting for offices from 10 to 28 days before an election.
6. 2013 Wis. Act 177, an invasive poll monitoring, requires election observers be permitted to stand within 3-8 feet of voters.
7. 2011 Wis. Act 23, §§ 6 eliminated straight-ticket voting and allows only military and overseas voters to cast a ballot for all candidates of a single party.

Plaintiffs claimed that these provisions disproportionately deny, abridge, and burden the voting rights of African Americans and Latinos in Wisconsin on account of race. According to plaintiffs, (1) African American and Latino populations are heavily concentrated in large cities; (2) African Americans and Latinos are less likely to possess documentary proof of residence, such as an up-to-date driver’s license (one analysis found that in 2013, African Americans were 1.4 times and Latinos were 2.3 times more likely than whites to lack a driver’s license or state ID); (3) these two minority groups are more likely than other voters to register to vote through special registration deputies; (4) African Americans and Latinos in Wisconsin have less stable housing arrangements, are more likely to be in poverty, are more likely to move, and are less likely to have access to a vehicle or to possess a driver’s license; and (5) African Americans have been the target of voter suppression efforts.

Plaintiffs assert that based on the totality of the circumstances, the disproportionate burdens imposed on African-American and Latino voters result in minority voters in Wisconsin having unequal access to the polls and less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.

According to Veasey v. Abbott, a similar Section 2 Voter ID case in Texas, Section 2 Vote Denial is found, if (1) there is a discriminatory burden on members of a protected class, (2) the burden causes the protected classes to have less opportunity to participate in the political process, and (3) this burden is in part caused by social and historical conditions that have discrimination against members of the protected class. In Veasey v. Abbott, the 5^th Circuit Court jointly considered what are known as the Senate Factors (long used by courts in Section 2 vote dilution claims) to decide if a Texas Voter ID law has a discriminatory effect and thus violates Section 2 of the VRA. “The Senate Factors” were first endorsed by the Supreme Court in a vote dilution case called Thornburg v. Gingles to apprehend if a law has a discriminatory impact.

Based on what plaintiffs already put in the complaint, the asserted discriminatory burden on African-American and Latinos is caused by social conditions. However, according to Gingles, a court will assess the burden on the basis of objective factors. In Veasey, plaintiffs had experts provide four distinct methods of analysis to prove that Texas’s voter ID provision has disparate impacts on African-Americans and Latinos. Likewise, the case here would be a very strong one if plaintiffs would be able to provide similar testimony. Besides statistical analyses, plaintiffs could also show data, such as unemployment rates of minority groups and percentage of people that are under the poverty line, to prove effects of past discrimination—a Senate Factor. Evidence such as Wisconsin’s disproportionately low rate of minority public officials and that only a few people abstain from voting out of the concern for voter fraud can be probative for plaintiffs’ claims as well.