Breaking and Analysis: (Another) Federal Court Strikes Restrictive WI Voting Rules

In a 119-page opinion, a federal district court has struck a host of WI voting rules, including certain voter id provisions, as unconstitutional. Among other things, the court has ordered that expired but otherwise valid student id cards will be valid for voting. This is yet another win for voting rights activists in the past few weeks. The trial court enjoined the following WI laws:

 most of the state-imposed limitations on the time and location for in-person absentee voting (although the state may set a uniform rule disallowing in-person absentee voting on the Monday before elections);

 the requirement that “dorm lists” to be used as proof of residence include citizenship information;

the 28-day durational residency requirement;

 the prohibition on distributing absentee ballots by fax or email; and

 the bar on using expired but otherwise qualifying student IDs.

This is a pretty sweeping opinion, which rejects many of the state’s arguments for its restrictive voting rules as pretexual, and really aimed at giving Republicans advantage in elections. The judge was particularly skeptical of measures which made it harder to vote in Milwaukee, with its large population of minority voters, and to a lesser extent, Madison, a liberal stronghold in the state. But this is a careful opinion which parses the evidence and does not accept all of the claims.

What will the 7th Circuit do? The first question is whether this gets consolidated with the other WI voter id case, and gets before the Easterbrook panel again. I don’t know if that will happen, but if it does, I think that parts of this ruling could well be reversed. On the other hand, things could be different before a different panel of 7th Circuit judges, and remember, now there is a 5-4 majority on the 7th Cir. en banc that has expressed concerns about overly strict voter id laws.  So it is uncertain how all this plays out.

Another uncertainty is the timing. Can all of this get resolved before the election. If this drags on on appeal, we may run into Purcell Principle problems for the fall 2016 election.

Some observations and details about the opinion:

  1. The trial court judge says that if he could rethink cases like Crawford (Supreme Court opinion upholding Indiana’s voter id law against facial challenge) and Frank (same as to Wisconsin from 7th Circuit), he would: “The evidence in this case casts doubt on the notion that voter ID laws foster integrity and confidence. The Wisconsin experience demonstrates that a preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement, which undermine rather than enhance confidence in elections, particularly in minority communities. To put it bluntly, Wisconsin’s strict version of voter ID law is a cure worse than the disease.” But that’s not his job in this opinion. Here, the judge considers an as applied challenge to the voter id law (and other laws). The conclusion: “The most pointed problem with Wisconsin’s voter ID law is that it lacks a functioning safety net for qualified electors who cannot get a voter ID with reasonable effort.”
  2. The judge’s remedy here sets up a potntial clash with the approach of Judge Adelman in the other voting rights case, and the right remedy will have to be sorted out, likely by the 7th Circuit. On this point, the judge writes: “Judge Adelman’s injunction provides one type of safety net. But plaintiffs have not asked me to impose that solution, and I will not. The state has already issued an emergency rule under which those who are in the IDPP will get receipts valid for voting. Although that is not a complete or permanent solution, it blunts the harshest effects of the IDPP. I will also order the state to publicize that anyone who enters the IDPP will promptly get a receipt valid for voting. To address this problem over the longer term, I will order the state to reform the IDPP to meet certain standards, leaving it to the state to determine how best to cure its constitutional problems. I take this approach because it respects the state’s decision to have a strict voter ID law rather than an affidavit system. But Wisconsin may adopt a strict voter ID system only if that system has a well-functioning safety net, as both the Seventh Circuit and the Wisconsin Supreme Court have held.”
  3. Later on in the opinion, the trial court says it may be possible to satisfy both judges’ orders: “Nothing would prevent the state from complying with both Judge Adelman’s injunction and the one that this court will impose.This court will require that the IDPP be reformed to satisfy two criteria. First, Wisconsin cannot make it unreasonably difficult for voters to obtain a free ID. Once a petitioner has submitted materials sufficient to initiate the IDPP, the DMV must promptly issue a credential valid for voting, unless readily available information shows that the petitioner is not a qualified elector entitled to such a credential. Second, the state must inform the general public that those who enter the IDPP will promptly receive a credential valid for voting, unless readily available information shows that the petitioner is not a qualified elector entitled to such a credential.”
  4. Although the court rejected claims of intentional racial discrimination for most of the challenged laws, it did find it for one: “I find that 2013 Wis. Act 146, restricting hours for in-person absentee voting, intentionally discriminates on the basis of race. I reach this conclusion because I am persuaded that this law was specifically targeted to curtail voting in Milwaukee without any other legitimate purpose. The legislature’s immediate goal was to achieve a partisan objective, but the means of achieving that objective was to suppress the reliably Democratic vote of Milwaukee’s African Americans.”
  5. On impersonation fraud (the only fraud a voter id law would prevent): “The court credits the evidence of plaintiffs’ expert on the subject, Dr. Lorraine C. Minnite, who testified and filed two expert reports. PX039; PX044. But the more compelling evidence comes from Milwaukee County, the one county in the state that has tried to systematically discover and track violations of election law. The county has an assistant district attorney devoted full-time to the job, Bruce Landgraf. Based on Landgraf’s testimony, and on other evidence discussed below, the court finds that impersonation fraud—the type of fraud that voter ID is designed to prevent—is extremely rare. In most elections there are a very few incidents in which impersonation fraud cannot be ruled out. But as Crawford and Frank held, despite rarity with which election fraud occurs, it is nevertheless reasonable for states to take steps to prevent it.”
  6. Sick burn from trial court on the fraud problem: “True, it is not unheard of: in one well-known case, a Milwaukee man was so committed to Governor Walker’s re-election that he voted 14 times. Tr. 8a, at 184:3-24. He was charged with and convicted of voter fraud (even without the benefits of the voter ID law). Proponents of voter ID would say that there could be other incidents of voter fraud that have gone undetected. But there is no evidence to support that hypothesis. As many have pointed out, multiple voting is not a very effective way of influencing an election, and few people would risk the penalties to do so. The bottom line is that impersonation fraud is a truly isolated phenomenon that has not posed a significant threat to the integrity of Wisconsin’s elections.”
  7. The court sees most of these laws motivated by partisanship, not race: “Accordingly, in light of the record of the case as a whole, the conclusion is nearly inescapable: the election laws passed between 2011 and 2014 were motivated in large part by the Republican majority’s partisan interests.”
  8. On the intention of motivation for curtailing early voting (called in person absentee voting here): “Statements by legislators show that Act 146 reduced the hours allowed for in-person absentee voting specifically to curtail voting in Milwaukee, and, secondarily, in Madison. Senator Grothman made repeated statements objecting to the extended hours for in-person absentee voting in Milwaukee and Madison, indicating that hours for voting needed to be “reined in.”12 On the floor of the senate, he said, “I want to nip this in the bud before too many other cities get on board.” PX022, at 5. Senate Majority Leader Scott Fitzgerald made similar comments. Id. at 12. As he put it, “But the question of where this is coming from and why are we doing this and why are we trying to disenfranchise people, I mean, I say it’s because the people I represent in the 13th district continue to ask me, ‘What is going on in Milwaukee?’” Id. at 16.” And: “The acknowledged impetus for this law was the sight of long lines of Milwaukee citizens voting after hours. Yet instead of finding a way to provide more access to voters in small towns, the legislature responded by reining in voters in Milwaukee, the state’s most populous city, where two-thirds of its African American citizens live.”
  9. The court rejected a “partisan fencing argument” (that election laws motivated by partisan animus get special scrutiny) as plausible but foreclosed to him by Crawford and Frank. However, the court went on to apply the Anderson-Burdick balancing test familiar in these kinds of cases, and found that some, but by no means all, of  the challenged laws imposed great burdens on some voters that were outweighed by the state’s interests.
  10. In contrast to a recent Michigan opinion, the Wisconsin court found that the elimination of straight ticket voting was permissible.
  11. Some of the provisions of WI law were challenged as Voting Rights Act section 2 violations. The court here rejected those claims, finding the evidence of burden insufficient. But the court found other provisions, such as a long durational residency requirement, as a violation of section 2.
  12. The court seemed to lose patience with the state on its defense of not accepting expired student ids for identification. “Repetition has not made defendants’ argument any more persuasive.”

[This post has been updated.]

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