I have written this new piece for The Atlantic. it begins:

A recent lawsuit accuses the state of Wisconsin of disenfranchising an eligible voter who had lost the use of her hands, because she could not sign a government document to get a voter ID. Another voter, who was born in a German concentration camp and could not produce a birth certificate, had to go to extraordinary lengths at the state’s Department of Motor Vehicles in order to vote. Strict state voter-identification laws are proving disconcerting on the ground. So why are the courts bending over backward to uphold them?

In 2014, the Wisconsin Supreme Court considered whether Wisconsin’s stringent voter-ID law violated the Wisconsin constitution’s right to vote. Thecourt found that the law would impose severe burdens on voters who could not afford to pay for underlying documents, like an out-of-state birth certificate, to prove identification, and on those voters who, through no fault of their own, could not establish their identity under the exacting rules established by the state.

To save the Wisconsin voter-ID law from being declared unconstitutional, however, the state’s supreme court, dominated by conservatives, engaged in a creative reading of Wisconsin law—one that essentially compels the state’s Department of Motor Vehicles to help these voters prove their identity and get ID cards. Wisconsin regulations require “officials to get birth certificates (or other qualifying documents) themselves for persons who ask for that accommodation on the basis of hardship.” Imagine relying on the DMV for such an accommodation. Nevertheless, not only did this saving construction sink the state challenge, but the federal courts relied on it to reject a challenge to Wisconsin’s law that was based on the federal Constitution and the Voting Rights Act.

Wisconsin is not alone in seeing a theoretical “softening” of voter-ID laws as a means of blunting legal attacks on their ultimate validity.