State’s top court upholds voter ID law (UPDATE)

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The Wisconsin Supreme Court shot down challenges Thursday to a voter identification law passed by the Republican-controlled Legislature, though it may have opened the door for more litigation in the near future.

In a pair of decisions authored by Justice Pat Roggensack, a divided court upheld Act 23, a law passed in 2011 that requires voters to show a government-issued ID at a polling place before casting their votes. The deeply divided court, in its decision in League of Women Voters of Wisconsin Education Network Inc. v. Scott Walker, called it “a reasonable regulation that could improve and modernize election procedures, safeguard voter confidence in the outcome of elections and deter voter fraud.”

According to the decision, “Identification by the use of Act 23-acceptable photo identification is the mode of ascertaining that the potential voter is a constitutionally qualified elector.”

But the court, in its decision in Milwaukee Branch of the NAACP v. Scott Walker, also said it is not fair for a potential voter to have to pay for documents in the process of obtaining a photo ID. The justices instead laid out a way for a potential voter to petition the Department of Transportation’s Division of Motor Vehicles to obtain an ID without the documents.

Act 23 has been blocked since 2012 and Eastern District of Wisconsin Judge Lynn Adelman struck it down in its entirety in April. But those familiar with Thursday’s decision said the court may have opened the door to lawsuits over the new rule change.

Former Supreme Court Justice and Marquette Law Professor Janine Geske called the court’s decision “very unusual.”

“They’ve created a bit of a mess for the DMV to try to figure out,” Geske said. “There will be litigation when that discretion is being used.”

Richard Saks, an attorney with Hawks Quindel SC, Milwaukee, who represented the NAACP and immigration advocates Voces de la Frontera, said he anticipates “a lot of problems” because “the average voter doesn’t know anything about it.”

Susan Crawford, an attorney with Cullen Weston Pines & Bach LLP, Madison, who represented the LWV, added that if Adelman’s ruling is reversed, that also could cause problems.

“(The court is) utilizing existing administrative rules that provide for the exercise of discretion by DMV employees who are likely not well versed in voters rights or election law,” Crawford said. “It does present a hurdle. The DOT has some work to do to ensure that a process is in place to protect the rights of voters.”

Spokeswoman Peg Schmitt said in a voicemail that the DOT is reviewing the ruling. Assembly Speaker Robin Vos, R-Burlington, said the Legislature will work with the Department of Justice to ensure that a constitutionally acceptable process is in place.

Both cases drew sharp criticism from the court’s liberal justices, who accused their more conservative counterparts of going out of their way to make the law constitutional. In a dissent to the majority opinion in LWV v. Walker, Chief Justice Shirley Abrahamson compared Act 23 to Jim Crow laws to show the ways she thinks it will disenfranchise black voters. Joined by Justice Ann Walsh Bradley in that case, Abrahamson wrote that Thursday’s precedent “undermines the very foundation of our democracy and deprives individuals of the most sacred of constitutional rights through no fault of their own.”

Saks echoed the dissent’s sentiments, saying the majority went out of its way to “salvage” the law.

According to a statement attributed to Gov. Scott Walker, “people need to have confidence in our electoral process and to know their vote has been properly counted.” Attorney General J.B. Van Hollen, in a news release, praised the ruling.

An appeal also challenging the law is pending before the 7th U.S. Circuit Court of Appeals, and the U.S. Department of Justice filed an amicus brief in that case Wednesday. According to his statement, Walker expects a similar decision from the federal court.

The state Supreme Court, in its decisions, noted there have been no recent cases of voter fraud. It also wrote that requiring a photo ID “does not destroy or impair the right to vote.”

Justice Patrick Crooks, who sided with the majority in LWV v. Walker but dissented in the other case, wrote in a concurrence that “the odds are against the plaintiffs at every turn.”

“The question we must answer,” Crooks wrote, “is not whether the voter photo identification law is good policy, but whether we can say beyond a reasonable doubt that Act 23 violates the Wisconsin Constitution on any of the grounds claimed by these plaintiffs.”

Republicans supporting the law have touted it as a way to prevent voter fraud, but critics say it’s a way to disenfranchise poor, black voters who tend to vote for Democrats.

Myrna Pérez, deputy director of the Brennan Center for Justice’s Democracy Program at the New York University Law School, said Wisconsin’s decisions were similar to other decisions in cases in Indiana, Tennessee and Georgia since the cases weren’t trying to challenge all ID laws, just certain ones.

However, she said, each state has had very fact-specific cases, which makes them different as well.

“No statement can say that photo ID laws are constitutional or not constitutional,” Pérez said. “It depends on peculiarities of the state and how the laws are crafted.”

WLJ staff writer Dan Shaw also contributed to this report.