Good news from Wisconsin.
Trying to crack down on in-person voter fraud isn’t a strong enough justification for Wisconsin’s voter ID law, a federal judge ruled Tuesday, because voter impersonation virtually never occurs now and is unlikely to become a real problem in the future.
In striking down the 2011 law signed by Gov. Scott Walker (R), U.S. District Judge Lynn Adelman held that although the U.S. Supreme Court had ruled in 2008 that states had an interest in preventing voter fraud, Wisconsin’s voter ID law wasn’t justified because voter fraud in person doesn’t really exist.
“The evidence at trial established that virtually no voter impersonation occurs in Wisconsin,” Adelman ruled in Frank v. Walker. “The defendants could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past.”
The judge also held that re-enforcing public confidence in the electoral process wasn’t a sufficient justification for the voter ID law. He noted that there was no evidence that law enforcement authorities were simply failing to catch instances of voter impersonation because they were hard to detect.
If voter impersonation is occurring “often enough to threaten the integrity of the electoral process, then we should be able to find more evidence that it is occurring than we do,” Adelman wrote. “If, for example, voter impersonation is a frequent occurrence, then we should find more than two unexplained cases per major election in which a voter arrives at the polls only to discover that someone has already cast a ballot in his or her name.”
“This is a warning to other states that are trying to make it harder for citizens to vote,” Dale Ho, director of the ACLU Voting Rights Project, said in a statement. “This decision put them on notice that they can’t tamper with citizens’ fundamental right to cast a ballot. The people, and our democracy, deserve and demand better.”
This ruling follows on the heels of a state judge in Arkansas finding that state’s voter ID law unconstitutional. That ruling has been temporarily stayed pending appeal, and the Wisconsin ruling will also be appealed, so it’s still early days.
Rick Hasen analyzes the Wisconsin ruling.
This is about the best possible opinion that opponents of voter identification laws could have hoped for. It is heavy on both facts and on law. It is thoughtful and well written. It finds that a voter id law serves neither an anti-fraud purposes (because “virtually no voter impersonation occurs in Wisconsin and it is exceedingly unlikely that voter impersonation will become a problem in Wisconsin in the foreseeable future”) nor voter confidence purposes. It finds that it burdens lots of voters (up to 300,000) voters. It finds these burdens fall especially on Black and Latino voters and that the reason is does is poverty, which is itself the result of prior legal discrimination.It enjoins enforcement of the law for everyone, and expresses considerable doubt that the Wisconsin legislature could amend the law to make it constitutional. It is about as strong a statement as one might imagine as to the problems the voter id law.
On the VRA issue, this is the first full ruling on how to adjudicate voter id vote denial cases under section 2. The key test appears on page 52 of the pdf: “Based on the text, then, I conclude that Section 2 protects against a voting practice that creates a barrier to voting that is more likely to appear in the path of a voter if that voter is a member of a minority group than if he or she is not. The presence of a barrier that has this kind of disproportionate impact prevents the political process from being ‘equally open’ to all and results in members of the minority group having ‘less opportunity’ to participate in the political process and to elect representatives of their choice.” The judge also approaches the causation/results question in a straightforward way. It is not clear whether the appellate courts will agree or not agree with this approach, which would seem to put a number of electoral processes which burden poor and minority voters up for possible VRA liability.
In sum, this is a huge victory for voter id opponents. But time will tell if this ruling survives.
So reasons for hope, but it’s way too early to celebrate. What the trial courts have done, the appeals courts and the Supreme Court can still undo. On the bright side, Kevin Drum explains why this case was different than Crawford v. Marion County, the 2008 Supreme Court decision that allowed for voter ID:
In a word, better arguments from one side. In Crawford, the state presented virtually no evidence that in-person voter fraud was a problem in Indiana—but neither did the plaintiffs provide much evidence that a voter ID law presented a serious obstacle to voting. Given this, the state’s interest in preventing voter fraud—even if that interest was more speculative than real—carried the day.
This time, the state once again produced virtually no evidence that in-person voter fraud was even a potential problem. But the judge was presented with loads of evidence that the burden of obtaining a photo ID was, in fact, quite high for low-income voters in particular. Since Crawford mandated the use of a balancing test to assess whether a photo ID law was justified, that made the difference and Wisconsin’s law was struck down.
He goes on to highlight parts of the decision that show the burden on some 300,000 voters in Wisconsin to get an accepted form of voter ID. The parallels to Texas should be obvious to anyone that has followed the issue in our state.
Speaking of Texas, there’s a hearing scheduled for today on motions made by AG Abbott to quash subpoenas to current and former members of the Legislature on their role in crafting the voter ID law – see here for the background, and here for the plaintiffs’ responses. How the judge rules on this motion will determine how much these legislators will have to testify in this case, and how much is protected by legislative privilege.