CHICAGO (CN) – The victory over Wisconsin’s new voter ID law looked tentative today as civil-rights attorneys stumbled through a battery of questions from the 7th Circuit.
With Wisconsin’s absentee-ballot deadline looming, the federal appeals court heard oral arguments in a suit against a state law that forces citizens to show government ID before they can vote. Shortly after embattled Gov. Scott Walker signed it in 2011, the law was challenged by a host of parties, including the American Civil Liberties Union, the AFL-CIO, churches and Latino advocacy groups.
After the Wisconsin Supreme Court upheld the law, U.S. District Judge Lynn Adelman struck it down for constitutional and Voting Rights Act violations. “Given the evidence presented at trial showing that blacks and Latinos are more likely than whites to lack an ID, it is difficult to see how an amendment to the photo ID requirement could remove its disproportionate racial impact and discriminatory result,” Adelman had said.
Adelman focused on race and class, noting that “by certain measures, Milwaukee ranks the worst of the 102 largest metropolitan areas in black/white segregation and the ninth worst in Latino/white segregation.” Similar statistics exist in employment, education and voting, Adelman said.
She enjoined the law based on the obstacles – such as the need to correct a misspelling on a birth certificate – that a poor or uneducated person may face when trying to obtain a state ID.
Speaking for Wisconsin, Clayton Kawski said Adelman had been “speculative” in connecting racial discrimination to poverty to a lower likelihood of having ID. She was “talking about likelihoods, not direct cause and effect,” Kawski said.
“We don’t know the magnitude of the burden,” he continued. “All we know is that 300,000 voters do not have an ID. We don’t know how many people are too poor to travel to the DMV.”
Later, he claimed that “the number who’ll fall through the cracks is infinitesimal.”
“The law makes common sense,” Kawski said, noting that he would have to show photo ID to get through an airport or buy Sudafed, rights less important than the right to vote.
Judge Diane Sykes seemed to find this backward. “The question is whether we want to trust our voting rights to the guys behind the counter at the local DMV,” she said. “Under the law, they have the discretion to waive documentation requirements.”
Dale Ho, an attorney for the plaintiffs, later noted: “The DMV is not the proper safeguard of the most fundamental right we have in our democracy.”
Judge Frank Easterbrook raised the point that would define the hearing. “The District Court said that 2.4 percent of whites and 4.5 percent of blacks lack ID,” he said. “That is the bottom line, so the legal question is if a 2 percent difference is enough.”
“This disparity is not enough,” Kawski replied.
“I don’t know why it’d be not enough in this case and enough in some other,” Easterbrook said. “You seem very shy about arguing a legal rule.”
This issue gave the plaintiffs far more trouble.
Ho tried to argue that the law was “based on a common misconception about the ubiquity of ID cards,” and pointed to “an undisputed pattern of historical discrimination.” His colleague John Ulin later called the law “a troubling blend of politics and race.”
But in turn Easterbrook cut both off to move to an issue for which neither seemed prepared.
“After all is said and done, whites register more often than blacks, too,” Easterbrook said. He asked Ho why a voter ID requirement is unconstitutional if basic voter registration requirements are not.
“Most of us would consider registration laws de minimis,” Ho replied.
“But what if there’s a percentage difference?”
“With registration, there are multiple attempts to reach people who don’t go to the DMV,” Ho said. “Registration is quite easy.”
This did not satisfy Easterbrook, who returned to the point again and again. Co-counsel John Ulin’s similar answers did not seem to suffice either.
Sykes, appointed to the bench by President George W. Bush appointee, seemed even more skeptical.
“We know that the hassle factor is not a burden the Supreme Court considers significant,” she said, despite a finding by the lower court that these “hassles” disproportionately affected minorities and the poor.
Sykes restated Easterbrook’s concerns and added: “It sounds like the law permits a massive array of documents to satisfy” requirements to obtain an ID.
Later, Ulin minimized the state’s core claim that the ID requirement will prevent voter fraud. “Voter impersonation doesn’t exist in Wisconsin,” he said.
Sykes rebuffed him: “Laws can serve a preventive purpose without evidence” that an issue is ongoing. She pointed out Supreme Court precedent that says prevention of voter fraud is a legitimate interest.
In a rare moment that seemed to favor the plaintiffs, Kawski noted that “53 percent of Wisconsinites favor voter ID,” but Easterbrook laughed him off.
“What conceivable relevance does a poll have?” the judge wondered. “Popular laws can be unconstitutional.”
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