Second Judge Finds WI's Voter ID Law Unconstitutional

A Wisconsin judge has found that the state's American Legislative Exchange Council-inspired voter ID restriction imposes an unconstitutional burden on the right to vote, writing that the law "tells more than 300,000 Wisconsin voters who do not now have an acceptable form of photo identification that they cannot vote unless they first obtain a photo ID card."

"That is a lot of people, and most of them are already registered voters," wrote Dane County Judge David Flanagan, making permanent the injunction he issued against the law in March.

In his decision, Judge Flanagan found that the potential burden on voters from Wisconsin's voter ID law -- Act 23 -- was great, but the risk of voter fraud very limited. "Since 2004, voter fraud investigations have been undertaken by the Milwaukee Police Department, by the Mayor of Milwaukee and by the Wisconsin Department of Justice, working with various county prosecutors working through the Attorney General's Election Fraud Task Force," he wrote. "None of these efforts have produced a prosecution of a voter fraud violation that would have been prevented by the voter ID requirements of Act 23."

On balance, the benefits of the law -- stopping the nonexistent voter fraud -- did not outweigh the costs of disenfranchising more than 300,000 Wisconsin voters. "Act 23 addresses a problem which is very limited, if indeed it exists," Flanagan wrote. "Given the sacred, fundamental interest at issue, it is clear that Act 23, while perhaps addressing a legitimate concern, is not sufficiently narrow to avoid needless and significant impairment of the right to vote."

Additionally, although the law provides for a voter identification card at no charge, Judge Flanagan found that obtaining the ID "can easily be a frustrating, complex and time-consuming process" that "can require the expenditure of an amount of money that is significant for an eligible voter who is indigent."

The lawsuit was filed by the Milwaukee chapter of the NAACP and the Milwaukee-based immigrant rights group Voces de la Frontera.

Law will not be in place for November; WI case distinct from U.S. Supreme Court decision

Earlier this year, Dane County District Judge Richard Niess issued a separate opinion in a case filed by the League of Women Voters invalidating the state's ALEC-inspired voter ID law. Although Wisconsin Attorney General J.B. Van Hollen is appealing Niess' ruling and will likely appeal Judge Flanagan's decision, the new voter ID requirements are not expected to be in place for the November 2012 elections. Supporters of the law would need to get both orders lifted for voter ID to be reinstated, and the Wisconsin Supreme Court has declined to take up the cases prematurely.

Although the U.S. Supreme Court held in Crawford v. Marion County Election Board that Indiana's relatively similar voter ID law did not violate the U.S. Constitution, the cases considered by Judges Flanagan and Niess were brought under the Wisconsin Constitution which, unlike the U.S. Constitution, expressly protects the right to vote. Wisconsin's voter ID law is also stricter than Indiana's, and evidence indicates it will place more burdens on a greater number of people. Additionally, Judge Flanagan found that plaintiffs in Wisconsin had established a much more extensive and credible factual record than plaintiffs in the Crawford case.

Voter ID Has ALEC Roots, Partisan Motivations

Wisconsin's voter ID law bears many elements of the ALEC model Voter ID Act, as do the dozens of voter ID bills that have been moving in state legislatures in recent years. Republican Rep. Robin Vos, the ALEC state co-chair in Wisconsin, spearheaded the effort to pass the bill in 2011, which reflects key elements of the ALEC "model" Voter ID Act. In June, Vos and another legislator sought to intervene in the appeal of Judge Niess' decision striking down the law as unconstitutional, but refused to disclose who was funding their legal fees.

After Wisconsin's ethics board advised that accepting free legal services would run afoul of Wisconsin law -- Wisconsin ethics rules prohibit legislators from accepting anything of value that might influence their official judgment -- Vos pulled his name from the case, but still refused to say who had been paying his legal fees. Days later, it was confirmed that the Republican National Committee had been secretly bankrolling the effort to intervene in the case.

Lester Pines, an attorney for the League of Women Voters, told the Center for Media and Democracy that the Republican Party's deep interest in seeing voter ID laws upheld is not surprising. "The registered voters least likely to have the required forms of identification [are] poor people, minority group members with low socio-economic status and students, all constituencies that generally vote for Democrats," Pines told CMD in an email. "If through the use of the Wisconsin Voter ID law the Republicans can suppress enough Democratic voters, they stand of chance of winning Wisconsin's electoral votes in November and possibly, thereby, winning the presidency."

The partisan motivations behind the GOP push for voter ID further crystallized after Wisconsin's recall election. Prior to the June 5 vote, with the voter ID law blocked by Judge Niess and both sides predicting a close race, GOP leaders and right-wing media declared that not having a voter ID law would lead to rampant fraud. But after Walker and three Republican senators survived their recall elections, there were no further allegations of statewide voter fraud or election irregularities in districts where Republican legislators kept their seats. Right-wing media and legislators only claimed voter fraud had happened in Racine, the one district where a Republican had lost. That claim was handily debunked this week by Wisconsin's elections board and the Racine County Sheriff's and District Attorney offices.