Bruce Murphy
Murphy’s Law

Why Photo ID is Dead

The Republican law will never become legal, because of Wisconsin’s unique constitution

By - Jul 23rd, 2012 01:32 pm

For all the stories written about the two circuit court decisions on photo ID, the media has failed to examine just how stunning these rulings are. They don’t just make it unlikely that photo ID will be required for this November’s presidential election. They make it unlikely the law will ever be enforced in Wisconsin.

The Republican campaign to require photo ID is a national one, largely based on unproven claims.  For instance, Reince Priebus, Republican National Committee chairman, has insisted his party must win by an extra one or two percentage points, because of voter fraud. That would be a massive amount of fraud: In the 2008 presidential election in Wisconsin, for instance, one percent of the vote was just under 30,000 votes and 2 percent was nearly 60,000.

Priebus, as critics have complained, offered no evidence to support his claim. The issue has repeatedly been examined, with the same results. A joint investigation in 2004 by then U.S. Attorney Stephen Biskupic (appointed by a Republican president) and then District Attorney E. Michael McCann (a Democrat) found some isolated instances of voter fraud (mostly by felons who are not qualified to vote) and no evidence of a “conspiracy” to commit voter fraud. A  2008 investigation in Milwaukee County by District Attorney John Chisholm (Democrat), and Attorney General J.B. Van Hollen (Republican), resulted in 20 prosecutions, mostly for voting by felons who were not qualified to vote (and many did not result in convictions).

Kevin Kennedy, director of the non-partisan state Government Accountability Board, has said the board has found about 20 instances of voter fraud in any statewide election dating back to 2000. (And that’s a lot of elections,) Even so, the state has taken steps to improve accuracy and combat fraud, including routine checks of the voter list for felons, recently deceased persons and duplicate registrations; and post-election checks for duplicate and felon voting.

Yet the Republicans, once they took over both houses of the Wisconsin legislature, passed a photo ID law, Act 23, that Dane County Circuit Court Judge David Flanagan calls “the single most restrictive voter eligibility law in the United States.”

Currently, 11 states in America have photo ID requirements in place. Six have a less stringent requirement, which allows those who lack photo ID to sign an affidavit of identity, or allows poll workers to vouch for the voters’ identity if they know them personally. But five states impose a stricter standard: those lacking photo ID can only cast a provisional ballot which won’t count unless they later prove their identity. Thus in Indiana, Flanagan notes, the provisional vote would be counted “so long as the exception was affirmed by affidavit within ten days.” Georgia, another of these five states, has a similar restriction.

But the Wisconsin law allows no other way to prove identity but a photo ID and those casting a provisional vote must return with such ID by no less than three days after casting the ballot.

Flanagan cites uncontested evidence presented by the plaintiffs showing 19 people obtained photo ID only after first obtaining a birth certificate which cost them anywhere from $14 to $39.50, creating a burden for poor people. Flanagan notes that a $1.50 poll tax was thrown out as unconstitutional by the courts in the 1960s. “The forty uncontested affidavits offer a picture of carousel visits to government offices, delay, dysfunctional computer systems, misinformation and significant investment of time to avoid being turned away by the ballot box. This is burdensome, all the more for the elderly and disabled.”

Flanagan cites cases like that of Ricky Tyrone Lewis, 58, a Marine Corps veteran who offered proof of his honorable discharge but could not obtain a photo ID because Milwaukee County has been unable to find a record of his birth.

And the potential number of voters who could be turned away is huge. Flanagan cites research by John Pawasarat (of the UW-Milwaukee Employment & Training Institute) showing hundreds of thousands of Wisconsin adults lack a valid driver’s license, including 23 percent of senior citizens, 55 percent of African American males, 59 percent of Hispanic females, etc.

While the potential harm to eligible voters is huge, “the record is uncontested,” Flanagan writes, that there is “little evidence of fraud and that which has been presented…would not have been prevented by the photo identification requirements of Act 23.”

While Flanagan’s decision is compelling, it pales in comparison to that of Dane County Circuit Court Judge Richard G. Niess. His decision is a classic example of judicial restraint, that barely considers the evidence Flanagan cites and simply bases his decision on the Wisconsin Constitution, which he calls a “bulwark” against any attempt to “enact laws that for any citizen, cancel or substantially burden a constitutionally sacred right, such as the right to vote.”

The right to vote in Wisconsin actually predates the creation of the legislature, Niess notes. “Until the peoples’ vote approved the Constitution, the legislature had no power to regulate anything, let alone elections…. In other words, defendant’s arguments that the fundamental right to vote must yield to legislative fiat turns our constitutional scheme of democratic government squarely on its head.”

Niess notes a long history of decisions by the Wisconsin Supreme Court emphasizing that the “sacred right” to vote cannot be taken away by the legislature. Anyone “possessing the qualifications prescribed by the constitution is invested with the constitutional right to vote,” a decision from 1880 declared. “These qualifications are explicit, exclusive, and unqualified by any exceptions, provisos or conditions, and the constitution, either directly or by implication, confers no authority upon the legislature to change, impair, add or abridge them in any respect.”

Yet that is just what Act 23 does, Niess notes: “Its photo ID requirements impermissibly eliminate the right of suffrage…As just one example, an individual who has… undisputed proof at the polls that he/she is a qualified elector… but lacks statutorily acceptable photo ID then or by the following Friday, may not vote.”

The state constitution, both Niess and Flanagan suggest, offers a stronger guarantee of the right to vote than the U.S. Constitution. The state constitution’s language is so explicit, Niess writes, that “courts must reject every opportunity to contort its language into implicitly providing what it explicitly does not: license to enact laws that, for any citizen, cancel or substantially burden a constitutionally guaranteed sacred right, such as the right to vote. Otherwise we stray into judicial activism at its worst.”

There are still two federal challenges to the Wisconsin law which may succeed, given how stringent Wisconsin’s statute is compared to the 11 other states with photo ID laws. But I doubt that will matter. Wisconsin’s constitution, and more than 125 years of state high court decisions, doom the state’s photo ID law as it is currently written.

Categories: Murphy's Law, Politics

20 thoughts on “Murphy’s Law: Why Photo ID is Dead”

  1. Aaron M. Renn says:

    The US Supreme Court has made it very clear that strict voter id laws are permissible. Notably in the Indiana case that established this, those seeking to overturn the law could not produce a single case of a voter who was disenfranchised because of the law. It’s unsurprising that the Wisconsin case (no doubt filed in friendly venue) cited the state constitution. We’ll see if that holds up.

    Those who don’t have a valid form of id are excluded from large sections of ordinary American life from flying to having a bank account. It seems unlikely that there are vast quantities of people out there unable to prove they are who they say they are. The fact that none of those opposed to voter id laws have made anything like the same stink over all the other portions of normal American life people without id are excluded from suggests to me clearly partisan motives by opponents of ID law as well. (This would be the same for efforts to prohibit states from purging legally ineligible voters from their registration rolls).

    There are clearly examples of major fraud in the electoral process resulting from ID issues. For example, in Indiana, a St. Joseph County official forged many nominating petitions to get Barack Obama on the ballot in Indiana. You may recall that his primary win over Hillary Clinton in Indiana was a big deal for him. Without these forged nominating petitions, Obama would not have qualified for the Indiana ballot, which may have completely changed the outcome of the Democratic primary. If you’re willing to forge nominating petitions, it’s hard to see why you’d stop there.

    Even died in the wool blue state Rhode Island recently passed a voter id law. Regardless of what happens in Wisconsin, it seems likely voter id will continue to spread as it’s basic common sense, and because as a “your papers please” mentality takes hold in every area of American life, it becomes progressively harder to treat something like voting differently from everything else.

  2. bill says:

    The merits of the cases may support repeal of the Voter ID law, however the backers of the draconian voter laws didn’t also invest tens of millions in prior state Supreme Court races to lose cases where a partisan advantage can ge gained. Objectivity and optics don’t appear to be highly valued by a certain majority of the current court.

  3. Garrick Jannene says:


    Up until Act 61 was signed into law late last year, lawsuits filed against the State of Wisconsin all started in the Dane County Circuit Courts. It wasn’t until very recently that you could sue the state somewhere else. I would presume this particular case was started before Act 61 took effect, so hence why it’s in Dane County. Even if it is a more favorable venue than say Waukesha or Washington County, the plaintiffs didn’t actually have a choice in the matter.

    My issue with voter ID is the the arguments for it are just not true. The type of fraud that voter ID would stop doesn’t occur enough to even be noticeable. There are, in fact, large amounts of the population without a valid form of ID, as the numbers say. Even a “free” ID still costs money, such as the money required to get a birth certificate to prove to the DMV that you are a real person.

    Voting in Wisconsin is a constitutional right, having a bank account is not. Those most likely to be disenfranchised by voter ID laws come from traditionally Democratic demographics. Given how the end results of voter ID laws clearly favor a certain political party at the expense of another, and the arguments for it are based on baseless accusations and denial of the facts, how could one view it as anything except partisan?

  4. Res Ipsa Loquitor says:

    Aaron Renn’s analysis may bear some impact on the case which originated in Flanagan’s court, but it is irrelevant to the case which originated in Niess’s court. Why is this so? Because Niess based his decision on provisions in the Wisconsin Constitution. The federal Constitutional arguments from the Indiana case are worthless in this context.

  5. Dave says:

    The right to carry arms is a constitutional right and we need a license to carry and a background check to buy something that is a right! Occupant same day registration doesnt make you a voter , it makes you an uncountable fraud case.

  6. ddddd says:

    Aaron Renn comments, “Those who don’t have a valid form of id are excluded from large sections of ordinary American life from flying to having a bank account.”

    He apparently leads a sheltered and relatively privileged existence. I’m not saying that to insult or ridicule, just to educate. Whether for better or for worse, there are any number of people – especially legal immigrants and seniors – who do NOT have bank accounts but either live in a cash-based existence or have someone else write checks for them. And there are scores of people who have never flown on an airplane, checked into a reputable hotel, purchased a car from a dealer or handled financial transactions requiring an ID.

    Wake up! Not every voter in Wisconsin has a house, mortgage, two cars and flies to Disney for vacation. Whether you are in a cash-paid apartment in the central city or a 90-year old woman who doesn’t travel and lives with a relative in northern Wisconsin, there are a lot of people who simply are not part of what some consider to be mainstream society and simply don’t have a photo ID.

  7. Stacy Moss says:

    “those seeking to overturn the law could not produce a single case of a voter who was disenfranchised because of the law. ”

    Mr Renn, did you read the essay?

    Flanagan cites research by John Pawasarat (of the UW-Milwaukee Employment & Training Institute) showing hundreds of thousands of Wisconsin adults lack a valid driver’s license, including 23 percent of senior citizens, 55 percent of African American males, 59 percent of Hispanic females, etc.

  8. steve says:


    There is a clear distinction between the right to bear arms and the right to vote. I cannot find, nor have I ever heard of a single incidence where someones vote lead directly to the death of another person. I can think of hundreds of thousands of incidences where someones gun killed someone else. A really great example comes to mind. It happened last week at a theater in Colorado.

    I have nothing against the right to bear arms. However, I do think that something that is capable of denying someone the ultimate right, to live, needs to be regulated more than the right to vote. Especially when you are talking about 20 verifiable cases of voter fraud over a 12 year span vs. 20 cases (probably) of gun related violence every day in Milwaukee alone.

    The law of large numbers is against the voter ID folks. You would have to mount an enormous effort to swing an election, especially presidential, a few points. You would need 10’s of thousands of people in multiple districts voting multiple times. Someone who wishes to influence an election would probably be spending their time more effectively working for a campaign or at least donating.

  9. Spock says:

    When you thwart the will of the people, there will be consequences.
    1. The major problem with our current voting system is that there is no way to identify illegal voting. It is nearly impossible to verify a case of voter fraud.
    2. Government incompetence and systemic problems of poor government workers does not equate to an unconstitutional system.
    3. Requiring an ID does not impair the right to vote. The Supreme Court as already confirmed this. While the State does hold voting as a right, it doesn’t hold it any more than the Supreme Court already stated. It makes no difference.

    Bottom line, the people want it. If you stand in the way of progress and the will of the people, the best thing for society is that you be run over.

  10. Res Ipsa Loquitor says:

    Spock misses the point as well. Yes, the United States Supreme Court has upheld voter ID laws in some jurisdictions, applying the United States Constitution to find them legit. One of the pending Wisconsin cases is based on alleged violations of the Wisconsin Constitution. Here any analogy to a case from another state decided under the US Constitution is completely irrelevant. The decision will be based on the Wisconsin Constitution, and it can’t be appealed to the US Supreme Court. Get it?

  11. Spock says:

    I get it Loquitor. It’s you that didn’t get my point. The US Supreme Court held voting to the same standard as the Wisconsin Constitution and still held Voter ID constitutional. I suspect that the Wisconsin Supreme Court will hold the will of the people. Voter ID is not dead, just sidelined by tyrants.

  12. bruf says:

    Wonder what the effect will be of the appeal
    to a higher court in Waukesha County.

  13. Res Ipsa Loquitor says:

    Spock, you must be a Densa member. The US Supreme Court doesn’t pass judgment on the language contained in the Wisconsin Constitution — only the Wisconsin Supreme Court can do so. Accordingly, a claim founded on language which appears in the Wisconsin Constitution can never get to the United States Supreme Court — you can appeal a case decided by the Wisconsin Supreme Court on a provision in the Wisconsin Constitution to the US Supreme Court. What the US Supreme Court has ruled in other cases decided under the US Constitution is irrelevant. Now can you grasp it?

  14. Res Ipsa Loquitor says:

    That sentence should read: “Accordingly, a claim founded on language which appears in the Wisconsin Constitution can never get to the United States Supreme Court — you CAN’T appeal a case decided by the Wisconsin Supreme Court on a provision in the Wisconsin Constitution to the US Supreme Court.”

  15. Bill Sweeney says:

    I hope that people who are in favor of Voter ID laws believe that it would be just as wrong to deny a citizen the right to vote as it would be for someone to vote fraudulently. I would be interested to know if anyone has any direct knowledge of voter fraud, ie not something they read or heard about, but something they witnessed personally. How would someone commit voter fraud?
    Another sidelight–if Voter ID were to become law, think of the potential boost in the fake picture ID business. People who work at liquor stores and taverns could give seminars on how to spot fake IDs. Perhaps Voter ID is just a Republican attempt to get the economy humming again.
    My perception is that Voter ID is, as a politician in Pennsylvania said, a way to disenfranchise what are seen as democratic voters. Having said that, I also believe that there are a significant number of people, republican, democratic and independent, who sincerely believe that Voter ID should be enacted. Having no experience with impoverished populations, they truly cannot understand what all the fuss is about. How hard is it to get an ID? In their experience, they are being asked to provide one all of the time. So what about this: let’s accept that the right to vote is too precious to be denied, but let’s work to get everyone a picture ID. People with deep pockets could provide money to some reputable group like the League of Women Voters so they could set up booths at voting stations offering to assist anyone who shows up to vote without a picture ID. They could assist the voter with whatever paperwork and fees needed in order to obtain a picture ID. This then would be a win/win situation. No one would be denied the right to vote. People could obtain picture IDs and perhaps live out their dream of being able to go thru an airport security check. And people concerned about voter fraud could take comfort that a fair and balanced method for addressing these concerns was being implemented.

  16. Tom says:

    Aaron Renn, an ID is not required to have a bank account; it is only required to open a NEW bank account.

    People without IDs can keep using their existing bank accounts; they can make deposits and withdrawals, write checks and order additional checks.

    Compare this with long-time registered voters. Voters who registered years ago but who do not have a photo ID can no longer vote. This makes the voter ID laws much more restrictive than the bank ID rules.

  17. Tom says:

    Here’s a question for those of you who have held a Wisconsin driver’s license for decades. Have you ever been required to present a certified birth certificate?

    I know when I got my first license in 1968 (in Milwaukee) I did not have a CERTIFIED birth certificate. In 1974 I moved to NY (where I still live) and got a NY driver’s license without presenting a birth certificate.

    Since that time, NY has never requested a birth certificate (although they recently requested my Social Security number). I suspect the same thing is true in Wisconsin–that long-time drivers have NEVER had to produce a birth certificate.

    If Wisconsin has never required long-time drivers to produce a birth certificate (if they have been “grandfathered”), that points up a gross unfairness in Wisconsin’s voter ID law–that the state has decided to “grandfather” citizens based upon whether or not they know how to drive a car. (Non-drivers–even citizens who have voted at the same address for decades–are not grandfathered.)

  18. Bruce,

    I think you may be premature in announcing the death of voter ID. I hope I am wrong but, given the increasingly open partisanship of the 4 member court majority, I am increasingly concerned that the case will be decided, not on the state constitution, or whether voters are disenfranchised, or whether the measure would actually eliminate any voter fraud, but what is good for the Republican Party. Again, I hope I am wrong, but the court’s recent record on highly charged cases doesn’t give me much confidence.

  19. PaulS says:

    Wisconsin Election Protection has documented many, many cases of disenfranchised voters in the June 5th election due to WI law. One of the most interesting cases is the Delafield elections official who *accepted* a receipt for an oil change. This in contrast to elections officials elsewhere rejecting social security documents, food stamp documents, and other permitted government documents. This, at least by anecdote, suggests not only a law that cuts a broad swathe of the poor from their rights, but in practice extends voting qualification to persons who may have a propensity to vote for a particular party.

    And this is the rub: the right to vote is integral to our citizenship, it it not bestowed upon us by any political party, it is ours in virtue of being humans in this nation. The responsibility of law–neither government nor party–is to protect this right *from* both government and political party. We are failing to do that.

    Please see: for supporting evidence.

  20. bopper says:

    The author should really distinguish between “voter fraud” — such as a person lying about who they are or voting twice — and “election fraud” — such as a felon barred from voting who tries casting a ballot anyway.

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