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Wisconsin: One Wisconsin Institute v. Nichol

January 27, 2016

By: Lisa Zhang

One Wisconsin institute, Citizen Action of Wisconsin Education Fund, and six Wisconsin residents filed a complaint against a series of provisions that Wisconsin has made since 2011 to its voting and election laws.

Interestingly, Wisconsin’s election laws just withstood a challenge that had lasted for four years. On March 23, 2015, the Supreme Court denied the petition for certiorari of Frank v. Walker. In Frank, plaintiffs challenged 2011 Wisconsin Act 23, which specifies limited acceptable forms of photo IDs, under the Equal Protection Clause of the Fourteenth Amendment, and the district court found it in violation of both the 14th Amendment and Section 2 of the Voting Rights Act (VRA). The 7th Circuit reversed the judgement on the ground that Wisconsin’s Voter ID law does not differ in ways that matter under the analysis in Crawford v. Marion.

No sooner than Frank was settled did another attack on Wisconsin’s election laws start. This time, plaintiffs raised six counts to challenge a series of election provisions in Wisconsin, including 2011 Wisconsin Act 23 again. The counts include violations of Section 2 of the VRA, violations of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Fifteenth Amendment, and the Twenty-Sixth Amendment. Below is an analysis of the claims made under the Equal Protection Clause.

Part I. Equal Protection Violations:

Plaintiffs raised these challenges under the Equal Protection Clause of the Fourteenth Amendment:

  1. 2011 Wis. Act 23, §§ 6 and 2011 Wis. Act 75, § 50 treated military voters and overseas voters differently from other voters without a rational basis. The former provision allows only military and overseas voters to cast a ballot for all candidates of a single party. The latter provision grants the option of obtaining absentee ballots by fax or email only for statutory overseas and military voters.
  2. The voter ID provisions, Wis. Stat. § 5.02(6m), Wis. Stat. §§ 6.79(3)(b), and 6.97(3)(b), distinguish between voters who possess such IDs but not qualifying voter IDs and voters who possess qualifying voter IDs without a rational basis.
  3. 2011 Wis. Act 23, §§ 57, 96, Wis. Stat. § 6.86(1)(b), and 2013 Wis. Act 146 distinguished voters moving in Wisconsin within 28 days of an election without a rational basis.
  4. By limiting early voting to one location per municipality, Wis. Stat. §§ 6.855–.86 disproportionately suppress the vote of Democratic voters without a compelling reason.
  5. Wis. Stat. §§ 6.855–.86 and other provisions challenged under Section 2 abridged and/or denied the right to vote on the basis of race.

Plaintiffs alleged that the burdens imposed by the challenged provisions are especially severe for certain groups, including African Americans, Latinos, young voters, poor voters, etc. Individually and collectively the burdens outweigh the benefits that the State claimed, such as preserving public confidence and the integrity of the election.

In Crawford v. Marion County Election Board, Justice Stevens used a sliding scale test to evaluate 14th Amendment claims in election law cases. Under what is known as the “Anderson-Burdick test,” the more severe the burden on voters, the stricter the level of scrutiny should be applied. This requires considering the magnitude of the asserted injury and evaluating the state’s interests.

Some injuries asserted by plaintiffs are voter intimidation and harassment (invasive poll monitoring), disproportionately limited options to vote, and disproportionately difficult situations to vote. From precedents such as Crawford, the interests that States usually provide for enacting similar election laws include deterring and detecting voter fraud, improving and modernizing election procedures, and safeguarding voter confidence by protecting the integrity and reliability of the electoral process. According to Crawford, Congress believes that photo ID is an effective method of preserving voting integrity.

The Court in Crawford stated that the party advancing the attack on the constitutionality bears a burden of persuasion. What degree of scrutiny the court would apply and which side this case would go depend on what evidence of injuries plaintiffs could provide, and how convincingly the magnitude of burden is quantified. For example, for Wis. Stat. §§ 6.855–.86, which limits early voting to one location per municipality, what concrete evidence can plaintiffs provide to prove that the “long wait times” that allegedly resulted from these provisions is a substantial burden for specific groups? Is there adequate remedy for problems caused by these provisions? And do the “long wait times” represent a significant increase over the usual burdens of voting?