High court justices hear voter ID arguments (UPDATE)

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Oral arguments Tuesday for a case challenging the state’s voter ID laws saw at least one Wisconsin Supreme Court justice invoking restrictive laws historically used to block blacks from participating in elections.

Justice Pat Roggensack, in questioning Assistant State Attorney General Clay Kawski, said the $20 that a resident who doesn’t have a copy of their birth certificate would have to pay to obtain one – to then get a government-issued photo ID in order to vote – would be analogous to a poll tax. She said she found that troubling.

“My concern is frankly trying to find a way that no one has to pay the state to vote if they don’t have what they need,” said Roggensack, who often is noted as the leader of the conservative-leaning block of the court.

The justice’s challenge to the Republican-controlled state’s case reverberated throughout the remainder of oral arguments, which lasted more than three hours Tuesday in two cases that challenged the law that was passed in 2011 by the Republican-controlled Legislature and Gov. Scott Walker.

In two challenges brought to the law brought by the League of Women Voters, the NAACP and Milwaukee immigration advocates Voces de la Frontera, Dane County judges struck it down. But the 4th District Court of Appeals deemed the requirement constitutional in the League of Women Voters’ case, prompting the league to take it to the high court. Meanwhile the justices decided to take the NAACP case out of the 2nd District Court of Appeals and decide it themselves.

Kawski spent much of his time arguing that the new laws should remain in place because they do not show “severe and widespread burdens” to the affected population. By estimations from both sides, there are more than 300,000 Wisconsin residents – 10 percent of the voting population – who are eligible to vote yet lack the form of ID needed to do so.

And while he noted Roggensack’s concerns – saying that some will have to pay a fee – Kawski said that still isn’t enough to overturn the law as it’s written. Even if those concerns affected a large amount of people – which Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley explained could be problematic – those challenges would have to be made on an individual basis, Kawski said.

“We don’t know whether it’s a severe enough burden,” he said, “based on what record was shown [in the circuit court].”

But Lester Pines, who is representing the LWV, and Richard Saks, who is representing the NAACP and Voces de la Frontera, both argued that the burden the new law would place on voters should be enough for the court to overturn it.

Saks, who is with Hawsk Quindel SC, also said that “procuring a photo ID can be a frustrating, time consuming and complex process.”

Pines, with Cullen Weston Pines & Bach LLP, said the same thing, explaining the limited list of photo IDs that would be accepted at a polling place is prohibitive. He also said that the supporters’ purported reason for the law – to prevent someone from using someone else’s identity to vote illegally – cannot be done so “in a way that impairs or restricts the right to vote.”

Saks noted several times that there have been no convictions “of the only type of vote fraud that would be prevented by [the law].”

Still, Kawski maintained that the law is needed to prevent voter fraud. He also argued the LWV case is “not about whether voter ID law is not good public policy,” but rather whether the Legislature and governor had the power to pass this law.

Michael Morley, a Washington, D.C., attorney representing people who intervened in the case, said that none of the concerns about accessibility for potential voters “come from [the law] itself.” Factors such as where a Department of Motor Vehicles office is located are not spelled out in the law, he said.

“The problem, if any, doesn’t lie in [the law’s] voting requirement,” Morley said.

Saks, after the hearing, said he wasn’t surprised that poll taxes were invoked during oral arguments. He said one of the main thrusts of this case has always been that lawmakers “can’t impose a wealth requirement to vote.”

NAACP President James Hall Jr. said after the arguments that he is “confident” that the courts will overturn the laws.

Attorney General J.B. Van Hollen said in a statement attributed to him that he still believes the law is constitutional, and that he is “hopeful that the law will be in place for the 2014 elections.”

Two other challenges to the law are pending in federal court in Milwaukee. Follow @eheisigWLJ