The legal fight over Wisconsin’s photo ID voting requirement put it back in the political spotlight this month, with the state a key front in the national battle surrounding such laws.
Here and elsewhere, the courtroom struggle stems from photo ID and other voting changes enacted by Republican legislators and governors in the last five years. Many, including Wisconsin’s, take effect in a presidential election for the first time this November.
A nine-day court trial of the Wisconsin legal challenge concluded Thursday in federal court in Madison, and a forthcoming ruling in that case could decide how voter ID affects the state’s 2016 general election. The outcome of that and another lawsuit also could influence the national back-and-forth on voter ID.
For now, how those challenges will be resolved is a big unknown for an election with high stakes.
“There are real voters voting under these laws,” said Jennifer Clark of New York University’s Brennan Center for Justice, which has opposed voter ID. “Right now it’s pretty unsettled what they will face when they head to the polls.”
The fight is over how stringent voter ID laws may be in places such as Wisconsin, home to one of the nation’s toughest ID requirements. It centers on potential voters who lack ID cards and either cannot get them or face extraordinary burdens to do so.
If a judge order changes to the law, such people could be permitted to circumvent the ID requirement by signing sworn documents or other measures.
Judge James D. Peterson indicated Thursday that he expects to rule by the end of July in the case, which was brought by liberal groups such as One Wisconsin Institute and individuals claiming harm under voter ID and other laws.
Peterson said his decision won’t trigger any change to state voting laws before the Aug. 9 primary.
Suits say law violates rights
Proponents of photo ID voting requirements frame them as safeguards against voter fraud that require little of the vast majority of voters who have driver’s licenses and other qualifying IDs.
The Wisconsin law requires driver’s licenses to be from in-state to be used to vote. It also permits the use of military, veteran’s and tribal IDs and U.S. passports. Student IDs are acceptable if they have a photo and are unexpired, but they must be accompanied by a separate document proving enrollment.
Critics of voter ID have called it the biggest assault on voting rights since the Jim Crow era. The One Wisconsin suit alleges voter ID and other recent voting changes illegally restrict voting access for certain groups, including minorities, urban residents and the very poor — all demographics less likely to possess ID cards. Changes to curtail early voting access also are being challenged in the One Wisconsin lawsuit.
Another voter ID lawsuit currently in play in the courts also could have an impact. An appeals court recently ordered that case, brought by the ACLU and other groups, back to federal district court in Milwaukee for a potentially definitive ruling.
Both lawsuits rest on the charge that Wisconsin’s law is disenfranchising some would-be voters who lack IDs, said Rick Hasen, an election law expert and professor at the University of California-Irvine.
Estimates of how many potential Wisconsin voters lack a driver’s license or other qualifying ID range from 300,000 to 150,000 or less.
Among that group, there’s a much smaller subset who lack valid birth certificates or other documents they might use to get an ID. Nearly 1,400 people have petitioned the state through a special process for those who lack both IDs and other documents proving their identity.
The voter ID court conflict stems from a tussle nearly a decade in the making.
Texas, N.C. cases key
In 2008, the U.S. Supreme Court upheld a photo ID voting requirement in Indiana, one of the first states to impose a strict voter ID law. The court said the state had a legitimate interest in acting to prevent voter fraud.
Many states, including Wisconsin, rushed to adopt voter ID laws after Republicans swept to control in many statehouses in the 2010 election. Here the requirement didn’t take effect in a statewide election until this year, having been stayed by court challenges almost continuously since its enactment.
Wisconsin and Indiana are among nine states with “strict” photo ID requirements, as defined by the National Conference of State Legislatures. In such states, someone trying to vote without an ID must vote on a provisional ballot and take additional steps after Election Day for their vote to be counted.
Wisconsin is among an even smaller group of states in which a ballot cannot be counted if the voter does not provide an ID.
Wisconsin’s legal battle over voter ID is part of a cohort of cases playing out in other states — some of which could affect where Wisconsin’s is headed.
In 2011, Texas adopted what many consider the nation’s strictest voter ID requirement. A legal battle ensued that may be heading toward a final ruling by the U.S. Supreme Court.
A federal appeals court last year ruled the Texas law violates the federal Voting Rights Act by having a “discriminatory effect” on black, Hispanic and other potential voters.
Plaintiffs in the One Wisconsin suit made a similar argument in their trial this month.
Late change unlikely
Another voter ID court case is playing out in North Carolina. A federal judge upheld the law there, but it’s headed to an appeals court for review.
In some states with voter ID, people who lack IDs are permitted to sign affidavits allowing them to vote without one. Typically, the voter must give a reason for doing so, such as that they’re indigent or face a particular impediment to getting an ID.
Judges in the 7th Circuit Court of Appeals, which includes Wisconsin, have taken notice. In the ACLU lawsuit, a panel of 7th Circuit judges noted Indiana permits voters “unable to obtain a complying photo ID for financial or religious reasons” to file an affidavit to that effect and have their vote counted.
North Carolina lawmakers last year added an affidavit provision to their law in the face of legal challenges.
Whatever the courts decide in Wisconsin, it’s unlikely they’ll require major changes too soon before the November election, according to Wendy Underhill, an elections expert with the National Conference of State Legislatures.
That could be a factor if the One Wisconsin suit advances to the 7th Circuit, which could happen if either side appeals Peterson’s ruling.
“The courts are sensitive to not shifting things up at the last minute,” Underhill said.