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Saturday, December 9, 2023
Courthouse News Service
Saturday, December 9, 2023 | Back issues
Courthouse News Service Courthouse News Service

Wisconsin Voter ID Law Put to 7th Circ. Again

CHICAGO (CN) - Hours after the 7th Circuit explained why it shot them down the first time, minority Wisconsinites asked the court again Tuesday to stay a ruling that lets the state's voter ID law take effect.

Though a federal judge initially enjoined the law for constitutional and Voting Rights Act violations, the 7th Circuit threw out that relief on Sept. 12 because Wisconsin changed its requirements to ensure better compliance.

The federal appeals court was divided just last week in declining to rehear the case en banc. That decision featured a strong dissent that claimed that the law would disenfranchise 300,000 voters in November.

On Tuesday, less than 24 hours after the 7th Circuit majority released a 23-page opinion explaining why the rehearing won't happen, the voter ID law's opponents again urged the court to issue an emergency stay.

The 43-page motion - filed by the American Civil Liberties Union, the AFL-CIO, churches, Latino advocacy groups and others - essentially repeats what failed to convince the circuit before.

"Wisconsin voters will suffer irreparable injury in the upcoming general election if a stay is not issued," it states. "The state's eleventh-hour attempt to implement the photo ID requirement will cause chaos at the polls, confusion among voters and poll workers, and widespread disenfranchisement."

With respect to the 300,000 voters lacking ID, the plaintiffs emphasized that most are probably racial minorities and said that "there is no realistic possibility that more than a handful if these voters can secure the needed ID by November 4."

Conservative heavyweight Judge Frank Easterbrook relied on the 2008 U.S. Supreme Court ruling in Crawford v. Marion County Election Board in overruling those issues of race and class on Monday.

"Since 2005 Indiana has required voters to present photographic identification at the polls," he wrote. "The Supreme Court held that this statute is compatible with the Constitution."

Easterbrook added that "the burden of getting a photo ID in Wisconsin is no greater than the burden in Indiana."

The Tuesday motion speaks more directly to Crawford that previous filings. It says that Wisconsin's law is "much more stringent than Indiana's law at issue in Crawford," in that it "lacks Indiana's affidavit option that allows indigent voters without identification to vote provisionally." Indiana also allows elderly and disabled voters to "vote absentee without photo ID or meeting any other requirements."

Easterbrook had quoting Crawford in saying: "the inconvenience of making a trip to the Department of Motor Vehicles, gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting."

The 23-page ruling mentions various race- and class-based statistics from the district court opinion, including income and education disparities, but does not treat them as controlling.

The Voting Rights Act "forbids discrimination by race or color but does not require states to overcome societal effects of private discrimination that affect the income or wealth of potential voters," Easterbrook wrote. He ruled that the Voting Rights Act "does not condemn a voting practice just because it has a disparate effect on minorities."

He added: "Although these findings document a disparate outcome, they do not show a 'denial' of anything by Wisconsin" because they do not show that "Wisconsin makes it needlessly hard to get photo ID."

Easterbrook said that black turnout has been higher than white turnout in Wisconsin by some measures, but insisted that "we are not saying that, as long as blacks register and vote more frequently than whites, a state is entitled to make changes for the purpose of curtailing black voting."

However, statistics on turnout and registration are not enough, since "no state has exactly equal registration rates, exactly equal turnout rates, and so on, at every stage of its voting system."

Given this, it is unclear what sort of statistics could satisfy Easterbrook's standards. He offered some implicit guidance by noting that the district judge "did not find that substantial numbers of persons eligible to vote have tried to get a photo ID but been unable to do so."

He added: "the judge did not make findings about what happened to voter turnout in Wisconsin during the February 2012 primary," when the ID law was enforced. "Did the requirement of photo ID reduce the number of voters below what otherwise would have been expected? Did that effect differ by race or ethnicity? The record does not tell us."

Easterbrook also gave a vote of confidence to photo ID requirements and pointed out that they are accepted to "board an airplane, drive a car, buy a beer, pick up a prescription, open a bank account, buy a gun, or enter a courthouse."

He did not acknowledge Judge Ann Claire Williams' dissent from the denial to rehear the case, which argued that none of these rights are as fundamental as the right to vote.

"That photo IDs promote confidence, even if they have no other effect, is widely accepted outside the field of voting," Easterbrook wrote.

He noted that although the photo ID requirement for boarding an aircraft may not prevent terrorist attacks, "the public feels safer when everyone must show a photo ID, which makes the requirement a rational one."

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