Why Photo ID is Dead
The Republican law will never become legal, because of Wisconsin’s unique constitution
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.
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.