CHICAGO (CN) – At oral arguments Friday, a Seventh Circuit panel was harshly critical of a federal judge’s finding that Wisconsin’s voter ID law discriminates against black voters.
In August, U.S. District Judge James Peterson ruled that Wisconsin must offer a way to let voters cast ballots without a photo ID, and found a restriction on absentee voting was intentionally crafted to suppress the black vote.
“The Wisconsin experience demonstrates that a preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement, which undermine rather than enhance confidence in elections, particularly in minority communities,” Peterson said.
The judge found that the voter ID law’s restriction on hours for in-person absentee voting discriminates on the basis of race, as it was “specifically targeted to curtail voting in Milwaukee without any other legitimate purpose.”
Milwaukee has the highest concentration of black voters in the state, and is an overwhelmingly Democratic district.
The en banc Seventh Circuit declined to review Peterson's decision on an emergency basis, finding the temporary procedures satisfactory to get through the November 2016 election.
At oral arguments Friday morning, a Seventh Circuit panel asked virtually no questions of Wisconsin Chief Deputy Solicitor General Ryan Walsh, who argued that the state provides its citizens with the “most generous, voter-friendly system in the nation.”
But U.S. Circuit Judge Frank Easterbrook grilled plaintiff One Wisconsin’s attorney Bruce Spiva.
“The Supreme Court has said that knowledge of disparate impact does not prove discriminatory intent,” Easterbrook said, expressing his doubt that the nonprofit carried its burden of proof.
As evidence of Republican legislators’ allegedly discriminatory intent, One Wisconsin pointed to state senator Mary Lazich’s statement prior to the passage of the bill.
“We’ve got to think about what this could mean for the neighborhoods around Milwaukee and the college campuses across this state,” Lazich said.
“She doesn’t explicitly say black,” Spiva told the court, but “it’s hard to draw any other conclusion” about what she meant, he told the court.
But Easterbrook argued that Lazich’s statement could be understood innocently, and again said there was little direct evidence to support ruling the law unconstitutional.
When Spiva demurred, saying that Peterson conducted a “sensitive analysis” of all the facts, Easterbrook called him out.
“Was it a sensitive analysis for the judge to hold unconstitutional what the Supreme Court has twice held constitutional?” the judge asked. “A district judge is not supposed to disagree with the Supreme Court of the United States.”
Easterbrook went on to ask, “Why is a rationale based on partisan advantage unconstitutional?”
He proposed, as an example, that Republicans could reduce food stamp benefits because most food stamp recipients vote for Democrats, and asked Spiva whether that would be unconstitutional.
Spiva said he believed it would be, but Easterbrook was highly skeptical of the cases he cited to support that position.
U.S. Circuit Judges Michael Kanne and Diane Sykes also sat on the panel.
The 2016 presidential election was rife with allegations of voter fraud, with President Donald Trump claiming he would have won the popular vote were it not for millions of illegal votes. Trump has called for a major investigation into the issue.
Days after the presidential election, Milwaukee’s elections chief Neil Albrecht told the Chicago Tribune that the state’s voter ID law likely contributed to lower voter turnout. Milwaukee saw a decline of 41,000 voters in the 2016 election compared to the 2012 election.
“We saw some of the greatest declines were in the districts we projected would have the most trouble with voter ID requirements,” Albrecht said.
According to One Wisconsin, approximately 3,000 people have used the state’s ID petition process, a special process for voters who cannot get another form of ID that Peterson has called a “wretched failure.”
Sixty-seven percent of these were minority voters. About 100 people have been denied a voter ID entirely, or their case has been suspended for lack of acceptable identifying information.
It is unclear when the Seventh Circuit will issue its ruling on the constitutionality of Wisconsin’s voter ID law.