In today’s 4-3 Wisconsin Supreme Court voter id case (the NAACP case, not the LWV case), the Wisconsin Supreme Court splits along party lines in upholding the voter id law against a challenge that it violates the state constitution. Nonetheless the Court rewrites the law to avoid a constitutional problem it identifies. Roughly speaking, although WI law lets you get a free state id if you don’t have one for voting, the costs of obtaining the birth certificate or other proof needed to get the id is not free. The majority then imposes a requirement that the DMV consider giving the birth certificate for free for this purpose using its discretion. From paragraph 70:
Stated otherwise, to invoke an administrator’s discretion in the issuance of a DOT photo identification card to vote, an elector: (1) makes a written petition to a DMV administrator as directed by Wis. Admin. Code § Trans 102.15(3)(b) set forth above; (2) asserts he or she is “unable” to provide documents required by § Trans 102.15(3)(a) without paying a fee to a government agency to obtain them; (3) asserts those documents are “unavailable” without the payment of such a fee; and (4) asks for an exception to the provision of § Trans 102.15(3)(a) documents whereby proof of name and date of birth that have been provided are accepted. § Trans 102.15(3)(b) and (c). Upon receipt of a petition for an exception, the administrator, or his or her designee, shall exercise his or her discretion in a constitutionally sufficient manner.
Dissenting Justice Crooks remarks on this procedure:
If the majority opinion leaves in place the discretion of DMV administrators to issue exceptions to those burdened by the cost of obtaining underlying documentation, it fails to guarantee constitutional protections against poll taxes. On the other hand, if the majority opinion requires DMV administrators to issue photo identification cards to individuals who are burdened by the cost of obtaining required underlying documentation, then it is directing a nonparty to take specific action, which it has no authority to do. In sum, the remedy imposed by the majority, under either
approach, is flawed.