Why Is Constitutional Amendment On the Ballot?

Vote here sign. File photo by Jeramey Jannene.

Wisconsin voters not only have to decide who wins the races for Supreme Court and superintendent of public instruction Tuesday, but whether the state Constitution should be amended. Because those first two choices are getting the most attention, here’s a primer on that constitutional question.

Question: So what exactly will I be asked about changing the state Constitution?

Answer: Here is the exact language: “Photographic identification for voting. Shall section 1m of article III of the constitution be created to require that voters present valid photographic identification verifying their identity in order to vote in any election, subject to exceptions which may be established by law?”

Q: Really? I’ve had to produce a photo ID to vote for years. What’s up?

A: That’s right. You’ve had to show a photo ID to vote in Wisconsin since 2016 because of a state law — not a constitutional mandate. Republican Gov. Scott Walker and the Republican-controlled Legislature passed the photo ID to vote law in 2011, but legal challenges to it took years to resolve.

Q: So, if this constitutional amendment is defeated, I won’t have to show a photo ID to vote?

A: You would still have to show a photo ID vote. The UW-Madison Law School’s State Democracy Research Initiative explains why: “The proposed amendment would not change the current voter ID requirements that are outlined in state law. Instead, if approved by voters, the amendment would make it more difficult for a court or future legislature to walk back the existing requirements.”

Q: I don’t get it. Why am I being asked to vote on a photo ID constitutional change, if that’s already the law and would still be the law if this constitutional amendment loses?

A: “Some Republican legislators have raised concerns about possible attempts to overturn the law now that there is a liberal-leaning majority on the Wisconsin Supreme Court, and they have cited those concerns as the motivation for seeking to constitutionalize the voter ID requirement,” the Democracy Research Initiative adds.

Q: So, if the amendment passes, it would be almost impossible to repeal in the future?

A: Not impossible, but repeal would be harder. Maybe the Democracy Research Institute explains that best:

“The amendment would limit options for challenging the current voter ID laws in state court. For example, a claim that the state’s voter ID law violates the Wisconsin Constitution’s protections for the right to vote would be far less likely to succeed if the Constitution explicitly says that voters must present a photo ID to cast a ballot.

“Meanwhile, if the amendment is approved, a court would be far more likely to strike down a statute that says voters do not need to provide photo IDs than one that requires them.”

Q: What are the arguments for and against this constitutional change?

A: Let’s turn to the Democracy Research Initiative one last time:

“Proponents argue that voter ID requirements improve election security and increase public confidence in elections.

“Opponents point out that, even where photo ID is not required, verifiable incidents of voter fraud are extremely low and other safeguards exist … [They say] voter ID requirements can impair the right to vote and undermine the fairness of elections by imposing unnecessary barriers that disproportionately impact people of color, older voters, those with disabilities, low-income communities, rural voters, and others who have more difficulty obtaining an ID.”

Q: You’ve mentioned actions taken by Capitol Republicans. What role did Democrats play?

A: Proposed amendments to Wisconsin’s Constitution must pass two successive sessions of the Legislature before going before voters, a three-year process. Governors, including Democratic Gov. Tony Evers, play no role in that process. Since Republicans controlled both the 2021-2022 and 2023-2024 sessions of the Legislature, they passed this proposed change, putting it Tuesday’s ballot with no support from Democrats.

Q: Then Republicans’ fears are real that future Democratic governors, and a Democratic-controlled Legislature, could repeal the photo ID requirement?

A: If Democrats keep control of the governor’s office, and regain control of the Legislature, they could repeal a photo ID law. And a four-justice liberal Supreme Court majority could uphold that repeal. A photo ID requirement in the Constitution could only be removed by another constitutional amendment.

Q: How many other states require voters to show a photo ID?

A. According to the National Conference of State Legislature, 36 do. Few of them have made it a constitutional requirement, however.

Steven Walters started covering the Capitol in 1988. Contact him at stevenscotwalters@gmail.com