Don’t Be Surprised 7th Circuit Skeptical of Voting Rights Claim in Wisconsin Voter ID Case

Here is my analysis of the district court order.

3. Both the constitutional law and VRA section 2 claims are controversial.  On the con law point, the judge purports to apply the “Anderson-Burdick” balancing test that the Supreme Court applied in upholding Indiana’s voter id law in the Crawford case. The judge purports to apply Crawford, but reaches a different result. It is not clear that this is a fair application of that test–which seems to suggest at most that the law be upheld as to most voters but create an “as applied” exemption for a specific class of voters. The judge said that this was not practical in this case given the large number of Wisconsin voters who lack id.  It is not clear that the appellate courts will agree.

4. On the VRA issue, this is the first full ruling on how to adjudicate voter id vote denial cases under section 2.  The key test appears on page 52 of the pdf: “Based on the text, then, I conclude that Section 2 protects against a voting practice that creates a barrier to voting that is more likely to appear in the path of a voter if that voter is a member of a minority group than if he or she is not. The presence of a barrier that has this kind of disproportionate impact prevents the political process from being ‘equally open’ to all and results in members of the minority group having ‘less opportunity’ to participate in the political process and to elect representatives of their choice.” The judge also approaches the causation/results question in a straightforward way.  It is not clear whether the appellate courts will agree or not agree with this approach, which would seem to put a number of electoral processes which burden poor and minority voters up for possible VRA liability.

In sum, this is a huge victory for voter id opponents. But time will tell if this ruling survives.

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