A Wisconsin judge has issued a temporary injunction against Wisconsin’s new voter ID law, calling it “the single most restrictive voter eligibility law in the United States.” Wisconsin’s voter ID law, like many others introduced in 2011 and 2012, is based on an American Legislative Exchange Council (ALEC) model bill.
Dane County Circuit Judge David Flanagan halted the voter ID law in time for the April 3 presidential primary and local general election, saying the law “is addressed to a problem which is very limited” and “fails to account for the difficulty its demands impose upon indigent, elderly and disabled citizens.”
A full trial is scheduled for April 16, at which time Judge Flanagan will decide whether to make the injunction permanent. The case is expected to be appealed up to the Wisconsin Supreme Court.
Voter ID Burden “serious, extremely broad, and largely needless”
Wisconsin passed its voter ID law in May on a contentious, party-line vote, one of 34 states to introduce ALEC-inspired voter ID legislation in 2011. Following the passage of the Wisconsin bill – Act 23 — the Latino rights group Voces de la Frontera and the Milwaukee branch of the NAACP filed suit in state court.
In his order, Judge Flanagan found that the potential burden on voters from Act 23 was great, but the risk of voter fraud very limited. He appeared to accept plaintiff’s arguments that “the right to vote is so crucial, so fundamental, that this court should examine carefully and closely the impairment that they claim is likely to have upon that exercise of that right,” rather than just accepting the legislature’s asserted justifications.
The judge cited the testimony of University of Wisconsin Professor Kenneth Mayer, who offered evidence that over 220,000 eligible voters do not have the forms of ID required under Act 23. Flanagan noted that “the burdens created by Act 23 will necessarily fall more heavily” on people of color (around half of whom do not have ID) and the elderly (23 percent of whom do not possess IDs).
Although the law provides for a voter identification card at no charge, Flanagan wrote, the assertion that the ID is “free” is “at best a somewhat incomplete picture.” He said the affidavits of forty individuals who tried to obtain a voter ID “offer a picture of carousel visits to government offices, delay, dysfunctional computer systems, misinformation and significant investment of time to avoid being turned away at the ballot box. This is burdensome, all the more for the elderly and disabled.”
“Obtaining a voter ID card can be tedious and is not really cost free,” he wrote.
“Extremely Little Evidence” of Voter Fraud
Flanagan also found that the legislature’s purported justification for voter ID, preventing voter fraud, was not borne out by the facts.
“Recent investigations of vote irregularities, both in the City of Milwaukee and by the Attorney General have produced extremely little evidence of fraud,” he wrote. According to the judge, the irregularities that were identified — improper use of absentee ballots and unqualified voters – would not have been prevented by requiring photo identification.
Based on these facts, Judge Flanagan found that the plaintiffs met the standard for a temporary injunction, demonstrating they would likely succeed at trial and would suffer irreparable harm if the injunction were not granted.
Voting Rights Expressly Protected Under WI Constitution
“We disagree with the ruling and will continue our efforts to defend Wisconsin's voter ID law, which is similar to laws that have already been upheld by the United States Supreme Court,” said Wisconsin Department of Justice spokeswoman Dana Brueck in response to the ruling.
However, Judge Flanagan wrote that the ruling was not controlled by the case Brueck referenced, the 2008 U.S. Supreme Court decision Crawford v. Marion County Election Board. In that case, the nation’s highest court deferred to the Indiana legislature in holding that Indiana’s voter ID law did not violate the U.S. Constitution.
Act 23 is being challenged only under the Wisconsin Constitution, which expressly protects the right to vote. Crawford was decided under the U.S. Constitution, which does not provide the same explicit guarantee. This means that voting restrictions will have a harder time passing muster under the Wisconsin Constitution than under the U.S. Constitution.
Flanagan also noted that Wisconsin’s voter ID requirements are more strict than Indiana’s, and that when compared with the evidence presented in Crawford, plaintiffs in this case demonstrated more “substantial, entirely credible and uncontested” evidence that Act 23 would be a barrier for many citizens to vote.
Voter ID's ALEC Roots
Wisconsin's voter ID law bears many elements of the ALEC model Voter ID Act, as do many of the voter ID bills that have been moving in state legislatures over the past year.
The idea of limiting the number of people who vote is closely associated with ALEC's founder, Paul Weyrich, who famously told a group of religious conservatives in 1980: “I don't want everybody to vote . . . our leverage in the elections quite candidly goes up as the voting populace goes down.” ALEC began to focus on voter ID shortly after the highest general election turnout in nearly 60 years swept America's first black president into office with strong support from college students and African-Americans. Soon after the 2008 elections, “Preventing Election Fraud” was the cover story on the Inside ALEC magazine, and ALEC corporations and politicians voted in 2009 for “model” voter ID legislation.
ALEC-inspired voter ID bills have come under increasing scrutiny in recent months.
In December, the U.S. Department of Justice blocked South Carolina's ALEC-influenced voter ID bill as discriminatory against people of color. South Carolina is one of several states with a history of discrimination requiring federal pre-clearance for changes to voting laws or procedures under the 1965 Voting Rights Act. Wisconsin is not subject to pre-clearance.
The Nebraska legislature is currently considering voter ID, and the local CBS affiliate KMTV has done a series of investigations digging into the law's ALEC roots. See the reports here, here, and here.
Appeal to WI Supreme Court Likely
The Wisconsin Attorney General's office has said it will appeal Flanagan's ruling. Cullen Werwie, a spokesperson for Governor Scott Walker, said “We are confident the state will prevail in its plan to implement photo ID.”
Because the case was decided under state law, it will almost certainly end up before the Wisconsin Supreme Court. That court has a 5-4 conservative majority. Last year, after a different Dane County judge blocked Governor Walker's ALEC-inspired collective bargaining law on grounds it was passed in violation of the state's Open Meetings laws, the state's highest court reversed in a 5-4 ruling.
Judge Flanagan has also come under fire for signing a petition to recall Governor Walker. The Wisconsin Republican Party has said it will file a complaint with the Wisconsin Judicial Commission, but NAACP attorney Richard Saks said Flanagan's signature shouldn't disqualify him from the case.
“He's a citizen. He has a right to vote. He has a right to participate in the political process and the discourse of our state,” he said. “I don't think it had any bearing on his decision in this case.”
Three other challenges to Wisconsin's voter ID law are pending in state and federal courts.