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.
