Judge Lets Wisconsin Voters Without ID Cast Ballots in November
By Patrick Marley and Jason Stein
Paring back the state's voter ID law four months before the presidential election, a federal judge ruled Tuesday that Wisconsin voters without photo identification can cast ballots by swearing to their identity.
The decision by U.S. District Judge Lynn Adelman in Milwaukee creates a pathway for voters with difficulties getting IDs who have been unable to cast ballots under the state's 2011 voter ID law.
"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," Adelman wrote in his 44-page decision.
The judge issued his preliminary order because he found that those arguing for a pathway for some voter without IDs were "very likely" to succeed.
The ruling will allow voters to use affidavits instead of IDs to vote in the Nov. 8 presidential election. But this new system will not be in place for the Aug. 9 primary for congressional and state legislative races because Adelman determined election officials needed more time to implement it.
Adelman, a former Democratic state senator, was appointed to the federal bench by President Bill Clinton.
Sean Young, an attorney with the American Civil Liberties Union who represented those bringing the legal challenge, praised the decision.
"Wisconsin's voter ID law has been a mistake from day one. This ruling is a strong rebuke of the state's efforts to limit access to the ballot box. It means that a fail-safe will be in place in November for voters who have had difficulty obtaining ID," said Young.
Republican state Attorney General Brad Schimel said he was disappointed with the ruling but did not say if he would appeal it.
"We will decide the next course of action after Wisconsin Department of Justice attorneys have had time to fully review and analyze the court's decision," Schimel said in a statement.
Tuesday's ruling marks the latest chapter in the saga over voter ID in Wisconsin, which was approved by Gov. Scott Walker and GOP lawmakers five years ago. The law was blocked for years by court decisions but took effect last year after overcoming those initial challenges.
Adelman in 2014 ruled that the voter ID law was unconstitutional, but that decision was overturned on appeal. The case has stayed alive -- on narrower grounds -- as the two sides have argued over whether there should be a way for some voters to cast ballots even if they don't have IDs.
A separate lawsuit in federal court in Madison is seeking to show that Republicans adopted voter ID and other laws over the past five years with the goal of benefiting their party and making it harder for minorities to vote.
That lawsuit by two liberal groups, One Wisconsin Institute and Citizen Action of Wisconsin Education Fund, also challenges limits on early voting, a requirement that voters establish residency 28 days before voting, the elimination of straight-ticket voting and other changes to voting rules approved since 2011.
U.S. District Judge James Peterson is expected to rule in that case soon. At closing arguments last month, he said there were few clear guidelines for how to rule on parts of a challenge to Wisconsin's voting rules and also questioned how much of an effect the state's voter ID law has had on elections.
In Tuesday's decision, Adelman wrote he was trying to prevent disenfranchising "voters who cannot obtain ID no matter how hard they try," though his ruling would apply to a larger class of voters.
Those who don't have IDs will be able to vote by going to polling places and signing forms saying they can't easily get IDs. The system is to be available to anyone who, to get an ID, "would have to do more than retrieve a birth certificate and related documents from his or her desk drawer and make a single trip to the (Division of Motor Vehicles)."
That would include those who don't have birth certificates, have mistakes on their birth certificates or have health problems that prevent them from traveling to DMV centers. Voters themselves will determine whether getting an ID would require more than a reasonable effort.
Adelman's decision described instances in which those who don't have IDs were caught in a bureaucratic limbo.
One was directed by DMV officials to track down adoption papers and court papers from Tennessee. Another was told to request a name change through the federal Social Security Administration. A third voter over three months had to speak with a DMV investigator nine times, make two trips to a DMV center and call other agencies to locate documents.
This spring, Walker's administration made changes to how it handles requests for IDs for those who have the most difficulty in getting them because they lack birth certificates or have trouble getting copies of them. That new system provides people with temporary documents that would allow them to vote.
But Adelman found that system did not go far enough, saying bureaucratic mistakes were inevitable and that they would disenfranchise some eligible voters.
The decision could provide the first big test for Wisconsin's newly created state Elections Commission, composed of three Democrats and three Republicans.
Republican lawmakers created the commission to replace the state Government Accountability Board, a group of six former judges that has been responsible for running elections for the last eight years.
The Elections Commission will be responsible for making sure local election clerks print blank affidavits and have them available at each polling place. The commission will also be responsible for making sure the public knows about the ability to vote by affidavit if they don't have IDs.
Commission spokesman Reid Magney said the agency would consult with the state Department of Justice to ensure it complies with the court order. He said he expected the ruling to affect a relatively small number of voters.
The decision by Adelman and the forthcoming one by Peterson could easily wind up before the 7th Circuit Court of Appeals in Chicago, which has been equally divided when it comes to the voter ID law.
A panel of three judges from that court upheld Wisconsin's voter ID law in September 2014 -- reversing Adelman's ruling that year that found the law was unconstitutional.
The case then went to the full appeals court, which split 5-5 on whether the law should be overturned. That left in place the panel's decision that upheld the law.
After that, the case returned to Adelman as voters bringing the case argued for creating a system to vote by affidavit.
Adelman initially ruled against them in October 2015, but a panel of the 7th Circuit opened the door in April for such a system. All three judges on that panel were appointed by Republican presidents.
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