Why Go to Wisconsin?

By: George Nwanze

While Gil v. Whitford, the Wisconsin gerrymandering case presently before the Supreme Court, may be absorbing all the legal intrigue, one previously litigated issue involving Wisconsin’s elections has gone unnoticed. Particularly, the state’s voter identification laws and the suppressive effects it has had on voter turnout.

In the aftermath of the 2016 election, perhaps the most common retort of the electoral upset was, “Wisconsin should have gone to Hillary Clinton.” Wisconsin was typically viewed as a reliable Democratic state in presidential elections, as the last time Wisconsin went for a Republican for president was in 1984. However, this assertion was more of a visceral reaction to what many view as a poor political decision, rather than something that the data actual bears out. Fortunately, a recently released study by the University of Wisconsin-Madison (UWM), sheds some light on whether it actually mattered if “she went to Wisconsin.”

There has been a lot of back and forth about the precise number of people that were deterred from voting by the state’s voter identification law. As the UWM study demonstrates, however, in the minds of at least some voters in Milwaukee and Dane counties, the state’s voter identification law is a deterrent. The voting restrictions at issue stem from a 2011 law passed by the Wisconsin State Legislature and enacted by Governor Scott Walker. This was coupled with other measures that reduced early voting, lengthened the period of in-state residency required before one was eligible to vote and limited absentee balloting, all under the auspices of securing the integrity of the election process.

Enacting this legislation has proven to be the quintessential example of a solution in search of a problem. There is almost no credible empirical evidence of electoral fraud occurring in Wisconsin, other than the sporadic cases of accidental voting. While there have been some irregularities in the voter process reported in recent years, much of those problems were due to the state failing to adequately purge voter of ineligible voters, not malicious actions to flaunt the law. The legislative response to this purported problem has been so strident that even some involved in the bill’s passage have come to regret it. The motives for the law become even more spurious when evidence is presented that legislators believed the law would diminish turnout in “Milwaukee and college campuses.”

Disregarding any potential motives for the passage of the law, which occurred shortly before the 2012 election, the new ID required by the law is one that precludes a substantial number of Wisconsinites from having access to the ballot, as well as having a disparate impact on the state’s poor and minority communities. In Frank v. Walker, a case before the Eastern District of Wisconsin in 2014, the court found that at the time of the case about nine percent of Wisconsinites lacked proper identification in compliance with the ID law. Additionally, gaining the appropriate voter identification was found to be difficult, with the state requiring that voters possess documents mandating proof of residency, duration of residency, and birth certificate.

When one examines the data to find those hit hardest by voter ID laws, it paints a disheartening picture of how the most vulnerable can often bear the heaviest burden under the law. Studies have shown that across the nation, communities of color are less likely to possess the state identification required under voter ID laws. There are plenty of responses to reports of minority disenfranchisement, including the often heard, “is it really that hard to get an ID”? In a nation with voter participation rates well below the global average, the preclusion of more voters from the process only perpetuates this issue.

It was the detrimental effects the voter ID law has on its citizens wishing to exert their right to vote litigation that ultimately led to U.S. District Court Judge James Peterson striking down many aspects of the voter restrictions statutes. Finding that the law “intentionally discriminates on the basis of race,” Judge Peterson ruled for the petitioners, compelled by the inculpating statements by legislators as well as the lack of evidence of voter fraud. The decision overturned provisions relating to early voting, polling locations, voter residency, the ID statute as it pertains to expired college IDs, and prohibitions on absentee balloting. The legal battle continues, however, as the decision was blocked from going into effect for 2016 by the 7th Circuit Court of Appeals. The issue of voter ID will likely come before the 7th Circuit again, and will need a compelling argument in order to prevail; perhaps the 2016 election has provided courts with a sufficient evidentiary basis to compare diminished turnout to previous elections. With the present voter identification statute in place though, who can tell whether it mattered “if she went to Wisconsin.”