Whether to allow Wisconsin’s strict voter ID law for this fall’s election is up to the Supreme Court -- a decision that could come any day. But on Monday, an appeals court gave the law’s backers a big lift.
A three-judge panel of the 7th Circuit issued a ruling upholding the law. It was the same panel of all-Republican appointees that last month removed a district court judge’s injunction on the law, leading voting rights groups to ask the Supreme Court to intervene.
The 23-page ruling, written by Judge Frank Easterbrook, finds that the law is constitutional and does not violate the Voting Rights Act’s (VRA) ban on racial discrimination. The opinion is striking for its blithe tone in upholding a law that could disenfranchise many thousands. One prominent election law scholar called it “horrendous.”
Still, the ruling could give the Supreme Court an additional reason to keep the ID measure in place. Courts tend to be less willing to overturn a full ruling on the merits than a more quickly issued order, which is all that the appeals panel had previously offered. And since Wisconsin has until 5 p.m. Tuesday to make its case to the Supreme Court, the ruling could also give state lawyers some helpful tips for making its case.
The law has likely disenfranchised voters already. When the appeals panel abruptly put the law into effect last month after it had been blocked for over two years, hundreds of people had already returned absentee ballots without ID, since the ID requirement wasn’t in effect at the time they voted. Unless the Supreme Court intervenes, they’ll now need to return to their local election office with acceptable ID to make their ballots count. Voting rights advocates say over 300,000 registered Wisconsin voters lack ID.
Just as worryingly, a few days before the appeals panel ruled last month, Wisconsin created a new procedure for voters who lack ID and a birth certificate. But it only works for those born in the state. Those born out of state -- who are more likely to be black or Latino -- have little recourse.
And Wisconsin Republicans are even standing in the way of a request by state election administrators for $460,800 to publicize the news that the law is back in effect.
“That’s a lot of money to spend on trying to inform people” about something that has been well-publicized in the news media, Senate Majority Leader Scott Fitzgerald, a key backer of the law, said last week.
At the heart of Easterbrook’s opinion is the claim that it doesn't matter that minorities are much less likely than whites to have ID, because everyone has the same opportunity to obtain one. Since people can “scrounge up a birth certificate” in order to get ID, Easterbrook writes, anyone who lacks one “was unwilling to invest the necessary time.”
Rick Hasen, a professor of election law at the University of California, Irvine, called that “the narrowest test yet [that] I’ve seen” for deciding when a voting restriction violates the VRA. If the Supreme Court approved that approach, it would render the landmark civil rights law all but useless for stopping anything but the most blatant and explicit racial bias in voting restrictions.
Hasen called the ruling “heartless and dismissive,” "horrendous," and “the shortest and most superficial discussion I’ve seen.”
Hasen is far from a knee-jerk critic of rulings that curtail voting rights. He praised a recent ruling by a federal judge in North Carolina upholding that state’s restrictive voting law, calling it “careful, well-written and well-reasoned.”
Easterbrook's ruling also contains at least one crucial factual error. Repeating a common argument used by ID supporters, the judge notes that a photo ID is needed to board an airplane. As plaintiffs challenging ID laws have pointed out, that’s untrue.
Easterbrook even dismissed a study by two expert scholars, Stephen Ansolabehere and Nathaniel Persily, finding that voter ID laws do little to promote public confidence, because the study appeared in the Harvard Law Review, not a “refereed scholarly journal.” Ansolabehere is among the leading experts on voting and public opinion. And Persily was chosen as executive director of the much-praised bipartisan commission on election reform created last year by President Obama.