Less than a month before the midterms, the U.S. Supreme Court stayed an appeals court order and put the brakes on Gov. Scott Walker’s rush to implement a controversial voter photo ID law.
The measure had been declared unconstitutional by a federal judge in April. However, a federal appeals court lifted a stay and eventually issued a ruling that the law does not violate the Voting Rights Act of 1964 or the U.S. Constitution.
The decision sent the Republican administration scrambling to put the photo ID law into effect for the Nov. 4 elections, even though some ballots already had been mailed to voters.
The decision also sent voting rights advocates scrambling. They had to prepare for likely problems on Election Day and educate people about the law, even as they continued to challenge a statute they said would disenfranchise voters, especially younger, older and minority voters.
Dale Ho, director of the ACLU’s Voting Rights Project, said to allow the state to implement the law would have fueled confusion and caused chaos.
The U.S. Supreme Court, responding to a motion from the ACLU of Wisconsin, issued a stay in early October.
The ID law was not the only tool Wisconsin Republicans held. Earlier in the year, Republican lawmakers advanced a series of measures that reduced opportunities for in-person absentee voting and expanded the amount of time lobbyists have to make campaign donations.
After the votes, state Sen. Nikiya Harris, D-Milwaukee, said, “The Republicans have been on a vendetta over the past few years to increasingly make it harder for individuals to vote. … Republicans should be ashamed at the role they are playing in attacking the freedom to vote in Wisconsin.”
Legislation aimed at restricting voting rights also advanced in Ohio in 2014 and was introduced in 27 other states.
And the Brennan Center for Justice at NYU School of Law reported that new restrictions on voting were in place on Election Day in 21 states, including in Texas, where an estimated 600,000 people — a disproportionate number of them African American and Latino — lacked the photo IDs needed to exercise their legal right to vote.
Wendy Weiser, director of the democracy program at the Brennan Center, said, “A quick look at the numbers show that in several key races, the margin of victory came very close to the likely margin of disenfranchisement.”
The civil rights advocates seeking to block implementation of Wisconsin’s voter ID law for the midterm election have asked the U.S. Supreme Court to weigh in on the issue.
A request was filed with the nation’s highest court on Oct. 2 asking the justices for emergency consideration. Opponents continue to oppose the voter ID law, one of a number of anti-voter measures pushed around the country by conservative lawmakers. But the focus now is on blocking implementation of the measure for an election process that is underway now.
Opponents of the measure maintain that it could create chaos at the polls and disenfranchise an estimated 300,000 voters.
“Thousands of Wisconsin voters stand to be disenfranchised by this law going into effect so close to the election,” said Dale Ho, director of the ACLU’S Voting Rights Project. “Hundreds of absentee ballots have already been cast, and the appeals court’s order is fueling voter confusion and election chaos. Eleventh-hour changes in election rules have traditionally been disfavored precisely because the risk of disruption is simply too high.”
Earlier this week, a sharply divided federal appeals court issued dueling opinions on Sept. 30 on Wisconsin’s voter identification law, shedding light on the arguments of judges who pushed for and against allowing the requirement to take effect for the Nov. 4 election.
The opinions from the 7th U.S. Circuit Court of Appeals do not change the fact that voters will have to present valid IDs at the polls on Nov. 4. Elections officials have been preparing for that since a three-judge panel of the court said on Sept. 12 the law could take effect.
Opponents of the law had asked for the full 10-member court to reconsider that decision. The court said on last week that it was deadlocked 5-5 on whether to rehear the case, meaning it would not reconsider it.
But the judges did not explain their rationale until this week.
The judges who were against the rehearing noted that the court didn’t order the state to implement the law, but rather said it could proceed if it wished.
“If seven weeks is too short, then state officials need not make any change; nothing has been imposed on them,” the judges wrote.
The state, which was represented by Attorney General J.B. Van Hollen’s Department of Justice, argued that it could implement the law. The Wisconsin state elections board asked the Legislature on Sept. 30 for permission to spend about $461,000 to educate voters about the law through a statewide television, radio and online campaign.
But opponents of the law, including the American Civil Liberties Union and the Advancement Project, which filed the federal lawsuit to block it, continue to maintain that there was not enough time to ensure all voters have the proper ID before the election.
“It is simply impossible — as a matter of common sense and of logistics — that hundreds of thousands of Wisconsin’s voters will both learn about the need for photo identification and obtain the requisite identification in the next 36 days,” the five judges who argued for the rehearing wrote.
Those judges said the appeals court should have not have accepted the possibility that up to 10 percent of registered voters will be disenfranchised because they won’t have the proper ID required to vote.
The arguments by those judges demonstrate the harm that will result if the law is in effect for the Nov. 4 election, said ACLU attorney Larry Dupuis.
“The disenfranchisement that is inevitable would be a travesty of justice,” Dupuis said.
“There is no compelling reason for election officials to re-engineer restrictive voting rules so close to an election,” said Penda D. Hair, co-director of the Advancement Project, a national racial justice organization. “In a democracy, there can be no moral justification for election officials to request, and the courts to sanction, this sort of manipulation of voting rules.”
The fate of Texas’ tough voter ID law moved into the hands of a federal judge this week, following a trial that the U.S. Justice Department said exposed another chapter in the state’s troubling history of discrimination in elections.
State attorneys defending the law signed by Republican Gov. Rick Perry in 2011 urged the judge to follow other courts by upholding photo identification requirements. The most recent such case came this month when a federal appeals panel, without issuing a final ruling on the measure, reinstated Wisconsin’s law in time for Election Day.
Whether Texas will also get a ruling before then is unclear. U.S. District Judge Nelva Gonzales Ramos ended the two-week trial in Corpus Christi without signaling when she’ll make a decision, meaning that as of now, an estimated 13.6 million registered Texas voters will need a photo ID to cast a ballot in November.
The U.S. Justice Department, which is fighting the law, began closing arguments by flashing onto a projection screen how many eligible voters it says lack an acceptable form of ID: 608,470, a revised lower number than what the DOJ and other law opponents said when the trial began. It also argued that black residents in Texas are four times as likely not to have an ID as white residents, with Hispanics being three times as likely not to have an ID. Both minority groups are traditionally Democratic voters.
“It imposes punishing costs. The burden is far beyond what is usual to vote, and under the circumstances, unsupportable,” said Richard Dellheim, a Justice Department attorney.
U.S. Attorney General Eric Holder took the unusual step of bringing the weight of his federal office into Texas after the U.S. Supreme Court last year struck down the heart of the U.S. Voting Rights Act, which blocked Texas and eight other states with histories of discrimination from changing their election laws without approval from the DOJ or a federal court. Prior to that landmark ruling, Texas had been barred from enforcing voter ID.
The ruling freed those states from the federal oversight, but Holder still dragged Texas back into court to challenge the voter ID law under a remaining – but weaker – section of the Voting Rights Act. Known as Section 2, the provision requires that opponents meet a far higher threshold and prove that Texas intentionally discriminated against minority voters.
The office of Republican Texas Attorney General Greg Abbott, who is favored to win the race to replace Perry as governor next year, said law opponents didn’t clear that hurdle.
Several minority voters testified during the trial, including a black retired grandmother who grew up in the segregationist era of poll taxes who described hurdles to voting since the Texas law took effect last year. The voter ID law, however, “will not prevent from voting a single one of the 17 voters who testified,” said Adam Aston, Texas’ deputy solicitor general.
Nineteen states have laws that require voters to show photo identification at the polls, and Texas is among four states where legal fights are pending over the issue, according to the National Conference of State Legislatures.
But opponents view Texas’ law as the toughest. Georgia, another Republican stronghold, also recently passed a voter ID law, but the Justice Department portrayed that state’s framework as reasonable in comparison. But unlike in Georgia, Texas’ list of acceptable forms of ID doesn’t include college IDs, but it does permit concealed handgun licenses.
The Justice Department also accused the Texas of intentionally skimping on voter outreach after the law was passed. The state deployed mobile voter card units after the law took effect, but those were on the ground for only 11 days. Texas has issued fewer than 300 free voter IDs since the law took effect, according to opponents. Georgia, meanwhile, has issued 2,200 voter IDs under a similar but more robust program.
A U.S. District Court will hear oral arguments starting Sept. 2 on Texas’s photo ID law.
The trial will include arguments from the Texas State Conference of the NAACP and the Mexican American Legislative Caucus of the Texas House of Representatives, who will present evidence that the state’s ID requirement erects discriminatory barriers to voting.
“As we all know, Texas has a voter identification law that has already been ruled to be discriminatory by a bi-partisan three-judge panel in Washington D.C., but it insists on implementing it anyway,” said Gary Bledsoe, president of the NAACP Texas State Conference. “This law is designed and intended not to counteract nearly non-existent voter fraud, but instead to disenfranchise minority voters and to prevent them from achieving political power. The Legislature chose to enact an extreme law instead of one where minorities who are indeed eligible have a realistic chance to vote and have their votes counted.”
Texas is one of seven states with a major ongoing lawsuit challenging voter restrictions ahead of the 2014 election. And since the 2010 election, new restrictions were put into place in 22 states.
The Texas NAACP and MALC argument is that the photo ID law violates Section 2 of the Voting Rights Act because it makes it harder for hundreds of thousands of minority citizens to vote and denies minority voters an equal opportunity to participate in the political process.
The photo ID law also violates the U.S. Constitution, these groups contend, because it burdens the fundamental right to vote and was enacted specifically to exclude minority voters.
Some facts in a news release from the Brennan Center for Justice:
• 1.2 million eligible Texas voters lack a form of government-issued photo ID that will be accepted under the new law.
• More than half a million eligible Hispanic voters and about 180,000 eligible black voters lack photo ID.
• Hispanic voters are 2.4 times more likely than white voters to lack an accepted ID. Black voters are 1.8 times more likely than white voters to lack ID.
• One in five eligible voters who earn less than $20,000 does not have accepted form of ID.
• Minorities in Texas are disproportionately likely to face impediments to obtaining photo ID, including lost wages, access to transportation, health problems and a lack of accurate underlying documentation.
The civic groups challenged the law last September. That case and others were consolidated with Veasey v. Perry, and arguments are expected to last for the next three weeks.
“The right to vote is the cornerstone of our democracy. Unfortunately, we continue to find ourselves in federal court defending this most basic right against Texas’ leadership,” said Trey Martinez Fischer, Chairman of MALC. “Multiple courts have ruled that Texas has expressed a pattern of discrimination toward its growing minority demographic — from its cumbersome voter identification requirements to its penchant for drawing intentionally discriminatory legislative maps — and I hope and expect that the courts will once again side with Texas voters over hyper-partisan lawmakers.”
The Wisconsin Supreme Court has upheld the voter ID law signed in 2011 by Gov. Scott Walker.
The court was divided in the rulings, which involved cases brought by the League of Women Voters of Wisconsin and the Milwaukee branch of the NAACP with the activist group Voces de la Frontera.
The court, while upholding the law, said the state must guarantee that voters could get an ID without paying a fee to the government. Justice Patience D. Roggensack, for the majority in one of the cases, wrote, “The State of Wisconsin may not enact a law that requires any elector, rich or poor, to pay a fee of any amount to a government agency as a precondition to the elector’s exercising his or her constitutional right to vote.”
Dissenting in both cases, Chief Justice Shirley S. Abrahamson said the state failed to provide a compelling interest to create this new burden on voters. She wrote, in what likely will be a widely shared quotation from one dissent: “Today the court follows not James Madison — for whom Wisconsin’s capital city is named —but rather Jim Crow — the name typically used to refer to repressive laws used to restrict rights, including the right to vote, of African-Americans.”
Republican backers have argued that requiring voters to show ID would cut down on voter fraud and boost public confidence in the integrity of the election process. But opponents said concerns over voter fraud were overblown and not documented and the true intent of the law was to cut down on turnout among minorities and others more likely to vote Democratic.
The measure remains the focus of a dispute in the federal courts. In that arena, the Justice Department this week sided with challengers of the measure, saying in court filings that it unfairly affects minority voters.
The statute was struck down in April by a federal judge as a violation of the U.S. Constitution’s guarantee of equal protection. The case is now on appeal with the 7th U.S. Circuit Court of Appeals, where the Justice Department on July 30 submitted a brief calling the statute unlawful and arguing that its photo ID requirements unfairly burden minorities.
The Justice Department criticized Wisconsin’s law as discriminatory and an effort to block access to the ballot box. Justice also filed with the challengers of a voter ID law in Ohio.
“These filings are necessary to confront the pernicious measures in Wisconsin and Ohio that would impose significant barriers to the most basic right of our democracy,” Attorney General Eric Holder said in a statement, calling the laws the “latest, misguided attempts to fix a system that isn’t broken.”
The Justice Department has warned of legal actions against states after the Supreme Court last year wiped out the most powerful provision of the Voting Rights Act. That provision required select states with a history of discrimination in voting – mainly in the South — to receive Washington’s approval before changing the way they hold elections.
Larry Dupuis, legal director of the ACLU of Wisconsin, said, “The federal court was right to strike down this discriminatory law, and the federal government clearly agrees with them. It’s too bad that some elected officials still seem fixated on depriving Wisconsinites of the right to vote.”
For the law to take effect, Wisconsin Republicans still must win at the federal level.
Early on July 31, Walker’s office released a short statement under the headline, “Governor Scott Walker’s reforms upheld in all Supreme Court cases.”
Regarding the court’s rulings on the voter ID law, Walker stated, “Voter ID is a common sense reform that protects the integrity of our elections. People need to have confidence in our electoral process and to know their vote has been properly counted. We look forward to the same result from the federal court of appeals.”
The League of Women Voters Wisconsin expressed “disappointed that a majority of Wisconsin Supreme Court justices did not agree with the League of Women Voters or the growing numbers of federal judges who have recently found that strict voter ID laws are more likely to prevent thousands of qualified citizens from voting than to deter the extremely small number of potential illegal votes.”
The league noted Abrahamson’s dissent and reminded voters that it “won an early injunction in our challenge to the voter ID law, helping ensure that no eligible voter was disenfranchised by the law through seven elections, including the 2012 presidential election.”
An estimated 300,000 registered Wisconsin citizens do not possess one of the IDs allowed under the Wisconsin voter ID law.
On the record…
In the NAACP/Voces de la Frontera case, the Wisconsin Supreme Court ruling was 4-3 to uphold the law. Justices Patience D. Roggensack, Michael T. Gableman, David T. Prosser Jr. and Annette Kingsland Ziegler were in the majority. Chief Justice Shirley Abrahamson and Justices Ann Walsh Bradley and N. Patrick Crooks were in the minority.
In the League of Women Voters case, the ruling was 5-2. Justices Patience D. Roggensack, Michael J. Gableman, David T. Prosser Jr., Annette Kingsland Ziegler and N. Patrick Crooks were in the majority. Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley dissented.
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A Wisconsin appeals court on May 30 said that a state law requiring voters to show photo identification at the polls is constitutional. The decision reverses a ruling by Judge Richard Niess in March 2012.
But the legal dispute over the law, enacted by Republicans in 2011 as the nation geared up for a presidential election, continues.
The ruling issued on May 30 was in regards to the challenge to the measure filed by the League of Women Voters in Dane County Circuit Court in October 2011.
Another Dane County judge’s decision blocking the requirement in a separate lawsuit still stands, according to The Associated Press. Also, there are two federal lawsuits challenging the law.
There were plenty of statements issued responding to the appeals court decision, from proponents and opponents of the law.
For the record, Wisconsin Attorney General J.B. Van Hollen said, “From the start, we have defended the constitutionality of Wisconsin’s voter ID law. While today’s decision is an important step toward full vindication of the law, we recognize that other challenges are still pending that address different issues. We will continue to defend the law and look forward to favorable decisions in those other cases as well.”
The League of Women Voters said, “The League of Women Voters of Wisconsin regrets that the Wisconsin Court of Appeals, District 4, overturned the Dane County Circuit Court’s strong ruling on the unconstitutionality of the Wisconsin voter ID law. The league is proud to have launched a legal challenge to the law, which erects barriers to citizen participation in government. We are considering our options with regard to further legal review.
“The voter ID law continues to be blocked by an injunction ordered in a separate case. Today’s court decision is a limited one. The court of appeals declined to find that the Voter ID law is unconstitutional in the absence of evidence that the requirement impairs the rights of qualified citizens to vote. Such evidence was not presented in this case. Thus, today’s decision does not resolve the constitutionality of the law. Other cases are still pending in state and federal courts that address the impairment issue.”
At the progressive One Wisconsin Now, executive director Scot Ross said, “The intent of the Republican voter identification bill is clear: deny otherwise legal voters the ability to exercise their constitutional right to vote and know that their vote is counted.”
He continued, “The voter identification bill targets specific populations, seniors, students and people with disabilities, for disenfranchisement and remains locked in court challenges. It is critical to remember that the real fraud related to voting in Wisconsin is politicians manipulating the laws for their own partisan, political benefit.”
Openly gay U.S. Rep. Mark Pocan, D-Wis., said, “In a country founded on the principles of civic participation, it is obscene that voters need to prove their fundamental right to vote has been violated, while states can pass restrictive voting bills without demonstrating any need for their actions.”
He continued, “While I expect that today’s decision is not the last word on Wisconsin’s Voter ID law, it demonstrates that now more than ever, we need an amendment to the U.S. Constitution that will ensure all Americans have a guaranteed, affirmative right to vote. My amendment will transfer the burden of proof from the voter back to the states –forcing them to demonstrate that their actions have a legitimate rationale beyond suppressing the vote for partisan gain. I will continue to fight for my Right to Vote amendment and to protect the voting rights of every voter in Wisconsin and across the nation.”
Earlier this month, Pocan, along with U.S. Rep. Keith Ellison of Minnesota, introduced a measure to explicitly guarantee the right to vote in the U.S. Constitution. The Pocan-Ellison Voting Rights Amendment would amend the Constitution to provide all Americans with the affirmative right to vote and empower the government with the authority to protect this fundamental right.
Under current law, it is up to the voter to prove that his or her right to vote has been infringed. The Pocan-Ellison amendment would place the burden of proof on the states to demonstrate that any efforts they take will not deny nor abridge the fundamental right to vote.
Pocan’s office said in 2013 more than more than 80 restrictive voting laws have been introduced in over 30 states across the country.
Editor’s note: This story will be updated.
Wisconsin residents may present electronic documents as part of the voter registration process, state elections officials decided this week.
Under Wisconsin law, voters who register by mail or on Election Day must provide a document at the polls showing proof of residency, such as a utility bill, a tax bill, paycheck or bank statement. The state Government Accountability Board, which oversees state elections, had required those voters to show paper copies of their documents.
The AFL-CIO, the progressive Institute for One Wisconsin and Wisconsin Election Protection, a group affiliated with the American Civil Liberties Union, asked the board to allow voters to print out electronic documents or show poll workers documents on a laptop or smartphone.
The organizations argued electronic documents are beginning to displace paper documents.
“Many individuals, especially those in younger generations, conduct their financial transactions almost exclusively using electronic means,” Rebecca Mason, an attorney for the Institute for One Wisconsin, wrote in her request to the board.
Accountability board attorney Michael Hass wrote in a memo that the board’s staff was reluctant to implement such a change with the presidential election just two months off.
Still, he noted that Wisconsin law recognizes electronic records as written records.
The board voted 6-0 to approve the groups’ requests. The board specified, however, that voters must bring their own electronic devices to the polls. Clerks won’t provide any.