[EL] Wisconsin thoughts

Tue Apr 29 12:31:12 PDT 2014

<http://electionlawblog.org/>

    Breaking News: Federal District Court Strikes Wisconsin Voter ID in
    ACLU Case <http://electionlawblog.org/?p=60972>

Posted on April 29, 2014 11:35 am 
<http://electionlawblog.org/?p=60972>by Rick Hasen 
<http://electionlawblog.org/?author=3>

Here are my initial thoughts on /Frank v. Walker, / 
<http://t.co/1zYaAALxjf>in which a federal district court held that 
Wisconsin's voter id law both violates the Constitution and Section 2 of 
the Voting Rights Act:

1. 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.

2. Wisconsin is likely to appeal, and it is unclear how the case will 
fare in the 7th Circuit and possibly the Supreme Court. (Further making 
this complicated is that there are state case putting voter id on hold 
and now pending before the State Supreme Court.)  A special twist is 
that Judge Posner of the Seventh Circuit made controversial remarks 
<http://www.thedailybeast.com/articles/2013/10/23/why-judge-posner-is-right-on-voter-id-laws.html> 
about voter id laws being a means of voter suppression, and expressing 
regret about his earlier decision in the Indiana voter id case. It is 
not clear what role, if any, he will play in any appeal.

3. Both the constitutional law and VRA section 2 claims are 
controversial.  On the con law point, the judge purports to apply the 
"Anderson-Burdick" balancing test that the Supreme Court applied in 
upholding Indiana's voter id law in the /Crawford/ case. The judge 
purports to apply /Crawford/, but reaches a different result. It is not 
clear that this is a fair application of that test--which seems to 
suggest at most that the law be upheld as to most voters but create an 
"as applied" exemption for a specific class of voters. The judge said 
that this was not practical in this case given the large number of 
Wisconsin voters who lack id.  It is not clear that the appellate courts 
will agree.

4. 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 proponents. But time will 
tell if this ruling survives.

[/T//his post has been updated./]

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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