Federal Judge Nixes |Wisconsin Voter ID Law

MILWAUKEE (CN) — With a scant few months to go until a contentious presidential election, Wisconsin must offer a way to let voters cast ballots without identification, a federal judge ruled.

"Although most voters in Wisconsin either possess qualifying ID or can easily obtain one, a safety net is needed for those voters who cannot obtain qualifying ID with reasonable effort," U.S. District Judge Lynn Adelman wrote Tuesday.

Adelman had initially enjoined Wisconsin's voter ID law, Act 23, as unconstitutional after a trial, but the Seventh Circuit reversed the ruling in 2014. The Republican-backed 2011 law requiring photo ID at the polls was in effect during April's primary election.

In the last two years, the voters led by Ruthelle Frank have pushed for the court to consider an issue not resolved in the first ruling: namely whether people who cannot obtain Act 23-qualifying ID with reasonable effort are entitled to relief.

Adelman concluded Tuesday that Wisconsin must let such voters execute an affidavit to receive a ballot.

"The plaintiffs' proposed affidavit option is a sensible approach that will both prevent the disenfranchisement of some voters during the pendency of this litigation and preserve Wisconsin's interests in protecting the integrity of its elections," the 44-page opinion states.

Barring appellate intervention, Adelman's injunction means that the "affidavit option" will be available for the Nov. 8 general election.

The law will not be changed in time, however, for the Aug. 9 partisan primary.

Wisconsin has modified the law over the years, most recently making veterans' IDs an acceptable form of identification.

Judge Adelman noted new procedures that the state Department of Motor Vehicles has instituted for issuing state IDs since the passage of the voter ID law. Investigations that the DMV conducts to determine an applicant's identity can take weeks, but applicants can use receipts from their applications as ID at the polls.

Wisconsin told the court that more than 81 percent of applications for voter ID submitted through this process over a nine-month period were approved.

"Of the remaining 257 petitions, 67 remain 'pending,'" Adelman said. "This leaves 190 petitions that were resolved without issuing an ID to the applicant. Of these, 98 are listed as 'cancelled by the customer,' 40 were suspended based on the lack of response from the applicant, and 52 were flat denials."

In certain cases, it would have been impossible for applicants to obtain the necessary documents to prove their identity under Wisconsin law, and in others it would take an "unreasonable effort," Adelman wrote.

Further, with hundreds of employees at dozens of locations statewide, Adelman said human error may hamper the process — indeed, it already has in some cases where counter staff failed to inform petitioners without birth certificates that they can use the new process.

Wisconsin has a valid interest in enforcing a law to prevent voter fraud, Adelman noted, but said this does not outweigh a person's right to vote.

"There is virtually no voter-impersonation fraud in Wisconsin," Adelman wrote, citing an earlier opinion in the same case. "And the defendants have produced no evidence suggesting that the public's confidence in the electoral process would be undermined by excusing those voters who cannot obtain ID with reasonable effort from presenting ID."

The "affidavit option" will require voters to list the reason they were unable to obtain a photo ID, but election officials will not have to evaluate those reasons, the court said.

"Any reason the voter deems a reasonable impediment must be accepted," Adelman wrote.

The affiants will swear under penalty of perjury that they were unable to obtain an ID and can check "work schedule," "disability or illness," "lack of transportation" or other barriers, or list a separate reason under "other."

"Just about any voter who does not face a reasonable impediment to obtaining ID will prefer to get the ID rather than take the time to fill out a bogus affidavit every time he or she goes to the polls," Adelman wrote. "Thus, the number of affidavits listing insufficient or false reasons should be very tiny."

Though state officials opposed the affidavit option, Adelman noted that they offered no reasonable alternative.

The state will not have to individually inform voters who likely lack a photo ID of the new option, but it must modify the public information to include information about it.

Republican attorney general Brad Schimel expressed disappointment in Adelman's decision.

Karen Rotker, a senior staff attorney on the Poverty, Race & Civil Liberties Project of the ACLU of Wisconsin Foundation, said they are very pleased with the ruling and accept that it is too late to apply it to the August election.

Despite the court refusing to provide individual notice, Rotker praised the decision to make the new affidavit option public.

"Our primary concern is making sure that all eligible voters have the right and the ability to vote without unnecessary barriers," she said in a phone interview Wednesday.

She added that she anticipates a final decision at some point after the February 2017 election, based on the order mentioning elections as late as that date.

The en banc Fifth Circuit on Wednesday struck down Texas' even stricter voter ID law.

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