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Is Voter I.D. Dead?
Tuesday's ruling is only the latest episode in an evolving legal struggle, but it could be the beginning of the end.

A modified version of the state voter I.D. law – while viewed by supporters as perhaps the most feasible means for circumventing state and federal court orders nullifying the original legislation – faces a powerful antidote in the 90-page opinion handed down by U.S. District Judge Lynn Adelman on Tuesday. He’s promised to schedule “expedited proceedings” if the state Legislature passes changes to the law, but the “balancing test” he’s identified may, ultimately, prove unwinnable for Republicans. To stand a chance, they may need to find more cases of voter fraud – a hard thing to do at any time, and perhaps impossible before the November election; the opposing side on Adelman’s seesaw is too formidable. Following a U.S. Supreme Court opinion, the balancing test weighs “the precise interests put forward by the state as justifications for the burden imposed” by an election rule versus “the character and magnitude of the asserted injury,” a point on which the opinion is strikingly persuasive.

In places, it reads like a farce of bureaucracy. Republicans have brushed aside objections to Act 23’s I.D. requirement by providing free I.D. cards issued by the state Department of Motor Vehicles, which would be a more reasonable provision if getting such a card was as simple as, say, applying for a library card. But it’s not, Adelman’s opinion argues, drawing on testimony received at trial. One witness, Genevieve Winslow, dutifully paid a visit to her local DMV service center after Act 23’s passage and brought with her “a certified copy of her birth certificate, a certified copy of her marriage certificate, her social security card, her Medicare card, her property tax bill, and her expired passport,” and yet this wasn’t enough. Because her name was misspelled on her birth certificate, an error that’s actually quite common, she was told she would have to get it amended. As this is a slow process that comes with its own fees, Winslow’s son contacted his mother’s state senator, Tim Carpenter (D-Milwaukee), who arranged for the DMV to issue her an I.D. through a “special deal,” a luckier end than many.

During the trial, six witnesses described similar troubles with birth certificates. One of them, Rev. Willie Brisco, the president of the Milwaukee Inner City Congregations Allied for Hope (MICAH), said he discovered that the birth date listed on his birth record was incorrect “and his grandmother in Mississippi had to collect his hospital and school records and travel 210 miles to apply for an amendment for him,” the opinion says. Another witness spent six months and more than $2,000 in attorney fees to make a similar change to her certificate, a document that some unlucky voters lack altogether. These people are often older African Americans delivered by midwives in the south, and their lot is to apply for the minting of a “delayed” certificate. The DMV has an exception for these cases – the mythical “MV3002 procedure” – but doesn’t advertise its existence because the agency 
wants to minimize exceptions,” Adelman writes. Even the office of Gov. Scott Walker, who signed Act 23, has attempted to intervene on behalf of citizens struggling to get “free” I.D.'s from the DMV.

Such is the sort of evidence the judge has heaped onto the “injury” side of the balancing test. At the other end is the state’s interest in preventing electoral hi-jinks, such as “voter-impersonation fraud,” a scheme in which someone signs in as another voter in order to cast his or her ballot illegally. During the trial, the state struggled to demonstrate that such malfeasance actually happens and couldn’t point to “a single instance” of it occurring in Wisconsin in the recent past,” the opinion says, despite the formation of two law enforcement groups designed to uncover voter fraud – a Joint Task Force of state and local officials, created in 2004, and an Election Fraud Task Force that convened in 2008.

“A person would have to be insane to commit voter impersonation fraud,” Adelman concludes, given that the penalty of up to three years in prison and a $10,000 fine is mountainous compared to the upshot of casting one more vote for a preferred candidate. Therefore, he says, “Act 23 cannot be deemed a reasonable response to a potential problem.”

To demonstrate a violation of the Voting Rights Act, the plaintiffs (the League of United Latin American Citizens of Wisconsin and others) also had to show that the bureaucratic handicaps described above would compound historic discrimination, and for this, the ruling looks to the lives of black and Latino voters, who are much more likely than whites to lack a photo I.D. One survey conducted in Milwaukee County – about six months after the voter I.D. law went into effect – found that 14.9 percent of Latino voters still lacked the necessary identification, along with 13.2 percent of black voters and 7.3 percent of white ones. Voters lacking I.D. were also more likely to be poor: Somewhere between 32 and 64 percent made less than $20,000 a year, additional evidence that the law would have disproportionate effects though still not enough to meet the demands of the Voting Rights Act. To clear its hurdles, the plaintiffs finally had to draw on research that spoke to discriminatory patterns in employment and housing in Milwaukee, to argue that Act 23 would translate inequality into lower turnout.

At the same juncture, LULAC et al. and Adelman
 both lean heavily on the testimony of one expert who said that voting is “a low-cost, low-benefit activity … very slight changes, marginal changes in the costs can have large effect on participation.” Weather, illnesses and other “day-to-day interruptions can deter a person from voting,” the expert testified.

In appealing, Wisconsin Attorney J.B. Van Hollen could attack this matrix of discrimination. It would seem like the most sweeping and complex argument for any party, whether a sociologist or legal team, to defend, yet even if the state succeeded, the constitutional issue decided by Adelman, that the law imposes an “unjustified burden” on voting, would remain. Tuesday’s ruling is rooted in the due process and equal protection clauses of the Fourteenth Amendment, which guarantees that no state shall “deprive any person of life, liberty, or property, without due process of law” or “deny to any person within its jurisdiction the equal protection of the laws.” The balancing test described at the beginning of this article arose from the long history of judicial precedent ruminating over what “due process” and “equal protection of the laws” mean in the United States. Besmirching either – whether directly or indirectly, intentionally or unintentionally – opens the door to a stinging rejection in court.

In November, the state Assembly passed changes to Act 23 that would allow someone without the documents or resources needed to acquire an I.D. to show up at their polling location, on election day, and “swear or affirm an oath administered by the chief inspector” that they are who they claim to be. The legislature could take up such a bill again, and Senate Majority Leader Scott Fitzgerald (R-Juneau) has said Republicans will “review our options.”

If it stands, Adelman’s ruling will likely be influential. There are few others like it. While doing research for the case, the judge came across many opinions that dealt with the Voting Rights Act in the context of “vote dilution” cases, often challenges to redistricting maps, or others contesting the disenfranchisement of felons. In the main decision, Adelman references another voter I.D. case, from Indiana, and more may be on the way. In excess of 10 states have added voter I.D. laws since 2011, according to the Brennan Center, in a national movement to stop what has been called voter fraud” but remains largely unproven.

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