De-Clawing a Badger: Western District of Wisconsin Softens State Voter ID Law
December 8, 2016
In a sweeping opinion handed down in late July, United States District Judge James Peterson struck a substantial number of voting provisions from the books in Wisconsin. The opinion, which spans 119 pages, found that multiple voter restrictions enacted by the state legislature were motivated by a desire to advantage incumbent and aspiring Republican officials. The court first rejected the plaintiffs’ facial challenge, relying on a 7th Circuit decision which held that even if some voters have trouble complying with the law, and those voters tend to be racial minorities, the law is not necessarily facially unconstitutional. This initial victory in preserving the overall voter ID law marks the extent of the defendants’ success in the case.
The bulk of the opinion devotes itself to overturning a number of changes to Wisconsin’s election law other than the voter ID challenge. These provisions would likely have had noticeable effects on the administration of the 2016 election, and the same can be said of their absence, as election officials will need to alter their practices to reflect the new legal landscape. In practical terms, it is likely much easier for new residents to register to vote in Wisconsin, and the provisions that would have benefited Republicans at the expense of their Democrat counterparts are no longer the law. Among other things, the opinion prevents the imposition of restrictions on the location and permissible times for in-person absentee voting, with the notable exception that the state electoral authority may impose a prohibition on such voting the Monday before an election. Indeed, the court found that this provision intentionally discriminated on the basis of race because of its outsized potential effect on black voter turnout in Milwaukee.
Additionally, the court held that Wisconsin may not require dormitory residence lists (used by students to prove residency in Wisconsin) to include citizenship information to verify the student’s eligibility to vote. In another move to ease restrictions on student voters, the durational residence requirement once again reverts to 10 days, rather than the 28-day minimum that was part of the challenged package of new laws. Another facet of the law that would have prohibited the use of expired student ID cards to prove identity was also prohibited. Now, an otherwise satisfactory student ID card cannot be rejected as a form of identification solely because it has expired. Furthermore, Judge Peterson’s ruling also permitted absentee ballots to be distributed by fax or email, facilitating voters’ access to their ballots more quickly.
While the opinion properly deferred to the higher court’s decree that mere disproportionate effect of an ID law does not render it facially invalid, it also undercut the rationale behind the law in its findings. The 7th Circuit’s decision in Frank v. Walker found that, despite the furor surrounding their enactment, voter ID laws protect the integrity of elections and thereby engender confidence in their outcomes. However, Judge Peterson’s opinion notes that impersonation fraud (that is, voters pretending to be other people in order to vote multiple times) is not a “significant threat to the integrity” of elections within Wisconsin, both due to its rarity and because of its ineffectiveness in influencing electoral outcomes.
Although the broader significance of the court’s finding remains to be seen, it may signal an end to the strategy of defending laws based on their ability to engender confidence in elections, and instead encourage a shift to an analysis of how much harm voter fraud actually inflicts on an election’s result.