Voter ID Law Reinstated in Wisconsin
By Patrick Marley and Jason Stein
A federal appeals panel reinstated Wisconsin's voter ID law Friday, acting with unusual speed eight weeks before the Nov. 4 election and just hours after hearing arguments on the subject.
The move by the U.S. 7th Circuit Court of Appeals clears the way for the state to immediately implement the law, though it does not stop the ongoing appeal over whether the measure is constitutional. State officials responded by saying they planned to have the requirement in place this fall.
"The state of Wisconsin may, if it wishes (and if it is appropriate under rules of state law), enforce the photo ID requirement in this November's elections," the judges wrote in an unsigned two-page order.
The appellate court indicated it was satisfied by changes imposed on the law by the Wisconsin Supreme Court in a separate decision this summer.
"This reduces the likelihood of irreparable injury, and it also changes the balance of equities and thus the propriety of federal injunctive relief. The panel has concluded that the state's probability of success on the merits of this appeal is sufficiently great that the state should be allowed to implement its law, pending further order of this court," the judges wrote.
Rick Hasen, a University of California, Irvine law professor and author of the book "The Voting Wars," said it was unusual for an appeals court to allow such a significant change to voting procedures this close to an election.
"Even though the (U.S.) Supreme Court could well agree that Wisconsin's voter ID law is legal, there's a real chance that the (U.S. Supreme) Court could reverse today's 7th Circuit order," Hasen said by email. "The Supreme Court has said that courts should not make changes in the run-up to elections, which can cause voter and election official confusion. The 7th Circuit did not even mention this rule in its order today."
The ruling comes as Republican Gov. Scott Walker, who signed the voter ID law in 2011, finds himself in a tight race with Democrat and former Trek Bicycle Corp. executive Mary Burke. Burke opposes the voter ID law.
The head of the state's election agency said Friday he would do everything possible to get the law back in place in time for the election -- something agency officials previously said would be a challenge.
"We are taking every step to fully implement the voter photo ID law for the November general election. We are now focused on communicating with local election officials and voters, and will have more information about the details next week," said Kevin Kennedy, director of the Wisconsin Government Accountability Board.
One of the first issues officials will have to contend with is how to deal with more than 11,800 absentee ballots that have already been sent to voters.
The voter ID law requires most people to submit photocopies of their IDs with their absentee ballots. Absentee ballots that have already been sent did not include instructions to do that because at that time the law was blocked.
That point did not come up during an hour of oral arguments Friday in which those who successfully challenged the voter ID law at trial were treated to tough questioning by the appeals judges.
"We are on the eve of an election," Judge Diane Sykes noted during arguments Friday.
Friday's order was unanimous and reinstates the voter ID law until the panel renders its full decisions. The judges said they were allowing the law to go into effect now because the state was likely to win its arguments that the voter ID law is constitutional.
Joining Sykes in the decision were Judges Frank Easterbrook and John Daniel Tinder. Sykes is a former Wisconsin Supreme Court justice who was appointed to the federal bench by President George W. Bush. Easterbrook was appointed to the appeals court by President Ronald Reagan and Tinder was appointed by Bush.
To vote under the law, people must show poll workers their driver's licenses, state ID cards, passports, limited types of student IDs, military IDs, naturalization certificates or IDs issued by a tribe based in Wisconsin.
The requirement was in effect for a low-turnout primary in February 2012 but soon after was blocked by a series of orders by judges in four lawsuits, two in state court and two in federal court.
U.S. District Judge Lynn Adelman in Milwaukee heard the two federal cases together. This April, he ruled the voter ID law placed an unconstitutional burden on the right to vote and violated the federal Voting Rights Act because minorities are less likely than whites to have IDs.
Adelman found some 300,000 people in Wisconsin do not have IDs and determined requiring people to show IDs at the polls would discount far more legitimate votes than fraudulent ones. He concluded voter impersonation -- the only kind of fraud the voter ID law would curb -- is essentially nonexistent, noting state officials could not cite any examples of it.
During arguments Friday, Sykes called Adelman's decision one that gave the plaintiffs "a whopper" of a remedy that she found "hard to reconcile" with a 2008 U.S. Supreme Court decision upholding Indiana's voter ID law. Easterbrook also questioned how Adelman could render his ruling in light of that decision.
"He took evidence and found the Supreme Court was wrong," Easterbrook said of Adelman.
Since the 2008 U.S. Supreme Court decision, several states have passed voter ID laws, and lawsuits are pending around the country. Legal observers expect the U.S. Supreme Court to eventually weigh in on the issue again.
Wisconsin Attorney General J.B. Van Hollen's aides have defended the law.
"Today's decision is a victory for common sense, fair elections, and the right of every eligible voter to cast a vote that will count," said a statement from the Republican attorney general.
In a telephone interview Friday before the court issued its order, Walker said his administration "absolutely" could implement the ID requirement in time for the election. After the decision came out, he issued a statement that said, "Today's ruling makes it easier to vote and harder to cheat."
The federal lawsuits in Wisconsin were brought by an array of groups and individuals, including the American Civil Liberties Union, Cross Lutheran Church, labor unions and the Wisconsin chapter of the League of United Latin American Citizens. They are being represented in court by the American Civil Liberties Union and the Advancement Project, a national civil-rights group.
The groups said they are considering an appeal of Friday's order.
"We are very disappointed in the irresponsible decision to lift the injunction against voter ID, which will cause chaos and disruption for voters and elections workers for the November election," said a statement from Chris Ahmuty, executive director of the ACLU of Wisconsin. "The state has not demonstrated it is prepared to make this new ID scheme work."
The panel heard the cases less than two months after the Wisconsin Supreme Court upheld the voter ID law in the two state cases. One was decided 5-2; the other 4-3.
Those rulings did not put the voter ID law back in place because of the separate ruling in federal court.
In the more closely divided of the state cases, Wisconsin's high court found the state could not require people to produce documents they had to pay for -- such as birth certificates -- to get IDs for voting. To do so would amount to an illegal poll tax, the justices found.
The Wisconsin Supreme Court crafted a "saving construction" of state administrative rules to ensure the voter ID law is constitutional and require the state to create a process for people to get IDs even if they don't have birth certificates or other key government documents. In response, state officials this week announced a new system for issuing IDs that will go into effect Monday.
Under that program, people can submit birth information so state officials can check state and federal databases to find records of their birth. The officials will also review baptismal records, school records or other documents for those who were never issued birth certificates.
The state Supreme Court decision and new process for issuing IDs means "the issue of cost is now off the table," Sykes said.
Easterbrook asked the state to provide the court with copies of the new administrative rules, saying he tried to search for them online during Friday's arguments and couldn't find them. The governor approved the rules Thursday and the state submitted them to the court soon after the arguments concluded.
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