MILWAUKEE JOURNAL SENTINEL: Federal court reinstates WI voter ID law for 2014 election

September 12, 2014
Patrick Marley and Jason Stein
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A federal appeals court in Chicago Friday reinstated for now Wisconsin's voter ID law hours after the three-judge panel heard arguments on the subject.

The move by the U.S. 7th Circuit Court of Appeals clears the way for the state to implement the law for the Nov. 4 election, though it does not stop the ongoing appeal over whether the measure is unconstitutional.

"The state of Wisconsin may, if it wishes (and if it is appropriate under rules of state law), enforce the photo ID requirement in this November's elections," the unsigned two-page order reads.

The appellate court said Friday that it was satisfied by changes imposed on the law by the Wisconsin Supreme Court in a separate decision earlier this year.

"This reduces the likelihood of irreparable injury, and it also changes the balance of equities and thus the propriety of federal injunctive relief. The panel has concluded that the state's probability of success on the merits of this appeal is sufficiently great that the state should be allowed to implement its law, pending further order of this court," the order reads.

The head of the state's election agency said Friday he would do everything possible to get the law back in place in time for the election — something agency officials previously said would be a challenge.

"We are taking every step to fully implement the voter photo ID law for the November general election. We are now focused on communicating with local election officials and voters, and will have more information about the details next week," said Kevin Kennedy, director of the Wisconsin Government Accountability Board.

Attorneys representing groups that successfully sued over Wisconsin's voter ID law came in for tough questioning Friday before a federal appeals panel, with Judge Diane Sykes saying they had won "a whopper" of a remedy at trial and questioning why the law shouldn't be put in place for the Nov. 4 election.

"We are on the eve of an election," Sykes said.

After the hourlong arguments, attorneys for those suing over the voter ID law told reporters it would be irresponsible for the court to put the law in place for this fall. They said no court had never put a voter ID law into effect so near an election.

"A court can do whatever it wants, but I think it would be extremely irresponsible for a court to do something that would so change the landscape not only for the (state Division of Motor Vehicles) but for election officials...," said Larry Dupuis, legal director of the American Civil Liberties Union of Wisconsin.

The case was heard by Sykes and two other judges on the U.S. 7th Circuit Court of Appeals, Frank Easterbrook and John Tinder. Sykes is a former Wisconsin Supreme Court justice who was appointed to the federal bench by President George W. Bush. Easterbrook was appointed to the appeals court by President Ronald Reagan and Tinder was appointed by Bush.

Gov. Scott Walker and his fellow Republicans in the Legislature in 2011 approved the law, which requires people to show poll workers certain types of photo identification to vote.

The requirement was in effect for a low-turnout primary in February 2012 but soon after was blocked by a series of orders by judges in four lawsuits, two in state court and two in federal court.

U.S. District Judge Lynn Adelman in Milwaukee heard the two federal cases together. This April, he ruled the voter ID law placed an unconstitutional burden on the right to vote and violated the federal Voting Rights Act because minorities are less likely than whites to have IDs.

Adelman found some 300,000 people in Wisconsin do not have IDs and determined requiring people to show IDs at the polls would discount far more legitimate votes than fraudulent ones. He concluded voter impersonation — the only kind of fraud the voter ID law would curb — is essentially nonexistent, noting state officials could not cite any examples of it.

But Sykes said Adelman's findings are "hard to reconcile" with a 2008 U.S. Supreme Court decision upholding Indiana's voter ID law. Easterbrook also questioned how Adelman could render his ruling in light of that decision.

"He took evidence and found the Supreme Court was wrong," Easterbrook said.

The judges did not say how soon they would render a decision or if they would act on the state's request to take the unusual step of reinstating the law by the end of the day. Under state law, clerks must mail absentee ballots by Thursday to people who have already requested them. If the voter ID law is in place for this election, most absentee voters will need to mail in photocopies of their IDs along with their ballots.

"Obviously, government agencies need to be doing things if this is going to be in place," Assistant Attorney General Clay Kawski said.

Tinder asked if the state was prepared to implement the law for this election, and Kawski said it was. Walker faces Democrat Mary Burke this fall in a race that polls have shown to be statistically tied.

According to the Accountability Board at least 11,815 absentee ballots have already been mailed, and those did not come with instructions telling voters they might need to provide copies of their IDs. That point did not come up in court Friday.

Reid Magney, a spokesman for the accountability board, said earlier that if the voter ID law were reinstated, election officials would notify people who have been sent absentee ballots about the need to provide copies of their IDs.

In a telephone interview Friday, Walker said DMV officials and local clerks could "absolutely" implement a photo ID requirement in time for the election.

"We believe that they've effectively gone through all the possible scenarios there and accounted for them," Walker said.

The panel heard the cases less than two months after the Wisconsin Supreme Court upheld the voter ID lawin the two state cases. One was decided 5-2; the other 4-3.

Those rulings did not put the voter ID law back in place because of the separate ruling in federal court.

In the more closely divided of the state cases, Wisconsin's high court found the state could not require people to produce documents they had to pay for — such as birth certificates — to get IDs for voting. To do so would amount to an illegal poll tax, the justices found.

The Supreme Court crafted a "saving construction" of state administrative rules to ensure the voter ID law is constitutional and require the state to create a process for people to get IDs even if they don't have birth certificates or other key government documents. In response, state officials this week announced a new system for issuing IDs that will go into effect Monday.

Under that program, people can submit birth information so state officials can check state and federal databases to find records of their birth. The officials will also review baptismal records, school records or other documents for those who were never issued birth certificates.

The state Supreme Court decision and new process for issuing IDs means "the issue of cost is now off the table," Sykes said.

Easterbrook asked the state to provide the court with copies of the new administrative rules, saying he tried to search for them online during oral arguments and couldn't find them. The governor approved the rulesThursday and the state submitted them to the court soon after the arguments concluded.

Kawski, the attorney for the state, came in for rough questioning at times.

When he mentioned that 63% of those surveyed in a Marquette University Law School poll last month supported the voter ID law, the judges cut him off.

"What conceivable relevance is a polling number to this case?" Easterbrook asked.

"Popular laws can be unconstitutional," Tinder noted.

If reinstated, the voter ID law would require people to show specific types of IDs to vote — driver's licenses, state ID cards, passports, limited types of student IDs, military IDs, naturalization certificates or IDs issued by a tribe based in Wisconsin.

The case is being watched nationally because other states have also approved voter ID laws in recent years that have been challenged in court. The U.S. Supreme Court is expected to eventually revisit the issue.

The federal lawsuits in Wisconsin were brought by an array of groups and individuals, including the American Civil Liberties Union, Cross Lutheran Church, labor unions and the Wisconsin chapter of the League of United Latin American Citizens. They are being represented in court by the ACLU and the Advancement Project, a national civil-rights group.

The lawsuits were filed against Walker and the state accountability board. Walker's chief counsel, Brian Hagedorn, on Friday sat with the assistant attorneys general at the defense table in the courtroom.