"A government that undermines the very foundation of its existence the people's inherent, pre-constitutional right to vote imperils its legitimacy as a government by the people, for the people, and especially of the people. It sows the seeds for its own demise as a democratic institution," wrote Wisconsin Circuit Court Judge Richard Niess in a March 2012 decision striking down that state's law requiring photo identification to cast a ballot. Wisconsin was one of 34 states to introduce "voter ID" legislation in 2011 and is one of the first to have its courts reject it.
Voter ID bills threaten to disenfranchise millions of people who do not have the required photo ID, primarily people of color, the poor and the elderly. A study from the Brennan Center for Justice found that approximately five million people nationally do not have the state-issued IDs that the new laws require. In Wisconsin, around 220,000 eligible voters lack ID, with around half of all African Americans and Latinos, and a quarter of all elderly citizens, not having a driver's license. The disproportionate impact these laws have on people of color has led the US Department of Justice (DOJ) to exercise its authority under the Voting Rights Act of 1965 to block voter ID laws in two states. Additionally, the National Association for the Advancement of Color People (NAACP) has raised concerns with the UN.
Proponents of voter ID and other ballot restrictions assert that these laws are necessary to prevent voter fraud. However, fraud almost never happens. A person is less likely to commit fraud than get struck by lightning. Stephen Colbert called it "an enemy so small it could be hiding anywhere." Voter fraud is so exceedingly rare it is insignificant, but voter ID legislation will have a statistically significant effect of depriving millions of Americans their right to vote.
Judge Niess acknowledged this in his decision, writing "voter fraud is no more poisonous to our democracy than voter suppression. Indeed, they are two heads on the same monster."
Wisconsin Courts Reject the New Voter ID Law
Four separate lawsuits challenging Wisconsin's voter ID law Act 23 have been filed since it passed in May on a contentious, party-line vote. Wisconsin Republicans assert that the law should be upheld because the US Supreme Court decided in Crawford v. Marion County Election Board that Indiana's relatively similar voter ID law did not violate the US Constitution. However, two of the four lawsuits are challenging Act 23 under the Wisconsin Constitution, which unlike the federal constitution, expressly protects the right to vote.
Judge Niess issued his ruling based solely on the legislature's constitutional authority to regulate voting. Article III, Section 1 of the Wisconsin Constitution provides that all state residents who are US citizens and over age 18 may vote. Section 2, according to the decision, "authorizes the government to exclude from voting those otherwise-eligible electors (1) who have been convicted of a felony and whose civil rights have not been restored, or (2) those adjudged by a court to be incompetent or partially incompetent, unless the judgment contains certain specifications."
According to Judge Niess, Sections 1 and 2 provide the exclusive basis for creating laws in Wisconsin that implement the constitutional requirements for voting. "The government may not disqualify an elector who possesses those qualifications on the grounds that the voter does not satisfy additional statutorily created qualifications not contained in Article III, such as a photo ID," he wrote. Further, the judge declared that "[b]y enacting Act 23's photo ID requirements as a precondition to voting, the legislature and governor have exceeded their constitutional authority."
One week prior to Judge Niess's decision, Dane County Circuit Judge David Flanagan temporarily enjoined the law on grounds that it "is addressed to a problem which is very limited" and "fails to account for the difficulty its demands impose upon indigent, elderly and disabled citizens."
Flanagan wrote that, although the law provides for a voter identification card at no charge, the assertion that the ID is "free" is "at best a somewhat incomplete picture." He said the affidavits of 40 individuals who tried to obtain a voter ID "offer a picture of carousel visits to government offices, delay, dysfunctional computer systems, misinformation and significant investment of time to avoid being turned away at the ballot box. This is burdensome, all the more for the elderly and disabled."
Flanagan distinguished Crawford based not only on the stronger voting protections under the state's constitution, but also because Wisconsin's voter ID requirements are more strict than Indiana's law. Further, when compared with the evidence presented in Crawford, the plaintiffs in this case demonstrated more "substantial, entirely credible and uncontested" evidence that the law would be a barrier to voting for many citizens.
DOJ Blocks Laws in Two States and NAACP Goes to the UN
Judge Niess's decision came on the same day the DOJ rejected a Texas voter ID law on the grounds that it would suppress the Latino vote. Last December, the DOJ also blocked South Carolina's voter ID bill as discriminatory against people of color. Texas and South Carolina are two of several states with a history of de jure discrimination that require federal pre-clearance for changes to voting laws or procedures under the Voting Rights Act. Wisconsin is not subject to pre-clearance.
During the same period that Wisconsin courts and the DOJ were rejecting some voter ID laws, the NAACP was arguing before the UN Human Rights Council that the new voting restrictions violate civil and human rights. "It was in 1947 that W.E.B. Du Bois delivered his speech [on America's Jim Crow laws] and appealed to the world at the UN," NAACP President Benjamin Todd Jealous said on March 10. "Now, like then, the principal concern is voting rights. The past year, more states in this country have passed more laws pushing more voters out of the ballot box than any point since Jim Crow."
The NAACP's appeal to the UN is not aimed at having an international body intervene in US affairs, but to bring international attention and pressure to the impact these laws have on voting rights. Global pressure may be needed as the voter ID rulings by Wisconsin courts and decisions from the DOJ are only short term victories. Wisconsin's voter ID challenges will likely be appealed to the Wisconsin Supreme Court, which has a 5-4 conservative majority, and Texas is expected to challenge the DOJ's refusal to pre-clear its voter ID law by asking the US Supreme Court to overturn Section 5 of the Voting Rights Act of 1965.
The arc of American history has been one of expanding voting rights, extending the franchise to the working and lower classes, to African Americans, to women and to 18 year olds. It remains to be seen whether the US will continue this march forward, or if it will instead sanction these unnecessarily restrictive voter ID laws and "imperil its legitimacy as a government by the people, for the people, and especially of the people," as declared by Judge Niess.
Brendan Fischer is a law fellow with the Center for Media and Democracy. He graduated cum laude from the University of Wisconsin Law School and has worked as a summer law clerk for the Inter-American Foundation and the Texas Civil Rights Project. Prior to law school, Fischer served as a Peace Corps Volunteer in a rural community in Northeastern El Salvador.
Suggested citation: Brendan Fischer, Voter ID Laws Face State, National and International Obstacles, JURIST - Hotline, Mar. 29, 2012, http://jurist.org/hotline/2012/03/brendan-fischer-voting-laws.php.
This article was prepared for publication by Stephen Zumbrun, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at firstname.lastname@example.org