Friday’s U.S. court ruling that breathed new life into Wisconsin’s voter ID law is a “recipe for chaos” that will cause “extraordinary disenfranchisement” this fall, voting rights advocates are warning as they push for a rehearing of the case.
"If this law is not stopped now from being implemented in November, it will cause irreparable harm to the 300,000 plus voters who lack ID,” John Ulin, a lawyer for Arnold and Porter who represents plaintiffs in the case, told reporters Wednesday.
Late Tuesday, challengers to the law filed court documents asking that the full 7th Circuit U.S. Court of Appeals take a second look at Friday’s ruling reinstating the law. That ruling, the brief argues, “imposes a radical, last-minute change to procedures for conducting an election that is already underway.”
Friday's ruling was made by a three-judge panel of the court, all of whom were appointed by Republicans.
The strict GOP-backed voter ID law had been on hold since not long after being passed in 2012, and was a struck down in April by a federal district court judge, who ruled that it violated the Voting Rights Act’s ban on racial discrimination in voting.
The fate of the law could be a factor in Wisconsin’s closely fought governor’s race this fall. Republican Gov. Scott Walker, a staunch supporter of the ID law, faces a challenge from Democrat Mary Burke. If the law makes it harder for minorities to vote, Walker could benefit. Emails released last week as part of a state investigation show Walker offered assistance to a conservative activist who, ahead of the 2010 election, paid for billboards in black Milwaukee neighborhoods warning “voter fraud is a felony.”
"If this law is not stopped now from being implemented in November, it will cause irreparable harm to the 300,000 plus voters who lack ID."'
On a call with reporters Wednesday, lawyers for the plaintiffs laid out a forceful and impassioned case for why the ID law should be blocked before November.
Ulin put the number of affected voters at around 370,000 — 300,000 registered voters who lack ID, plus around 70,000 currently unregistered who will try to register on election day. “Is it possible that some of those voters will obtain an ID before election day on Nov 4?” he asked. “Sure, that’s possible. Is it likely that anywhere near 370,000 IDs are going to be issued? That’s virtually impossible.”
As the district court found, those voters without ID skew non-white. Blacks are 1.4 times as likely as white to be affected, and Latinos are 2.3 times as likely as whites.
In its brief ruling Friday, the appeals court panel noted that Wisconsin had implemented a last-minute process to help those without ID get one. But the challengers noted that to get IDs to all 300,000 registered voters who lack one, the state would have to issue 6,000 cards per day. That is made even more unlikely, they said, by the fact that in 42 Wisconsin counties, representing over a quarter of the population, DMV offices are open only two days a week, for a total of 10 hours per week. In two counties, no DMV office will be open before election day.
And the state’s new process includes no recourse for voters who were born out of state, and have out-of-state driver’s licenses, which aren’t allowed under the law. That group, too, is disproportionately minority, the lawyers said. Though 75% of the state’s whites were born in Wisconsin, just 59% of blacks and 43% of Latinos were.
Dale Ho, who heads the ACLU’s voting rights practice, noted that the election is already underway: Kevin Kennedy, the state's top election administrator, said Tuesday that 11,000 absentee ballots have already been mailed out, and estimated that hundreds had been returned. Those voters, Ho said, were given no information about the ID requirements, since they weren’t in effect at the time. Unless they now learn about the legal change and provide acceptable ID, they’ll be disenfranchised. Kennedy said clerks were being told to use "extraordinary measures" to contact absentee voters.
One voter who has only an out-of-state license has said he was told by election administrators that it could take eight weeks for the DMV to process the documents he presented Tuesday to establish his identity and get a Wisconsin license. The election is in seven weeks.
Ho also raised concerns about confusion at the polls. Poll workers, he said, would have to be trained on the law in just seven weeks—a fraction of the eight-month timeline under which the law was designed to be rolled out. The ID measure is complex: For instance, Ho said, it allows certain types of student ID but not others. And although it doesn’t require that the address on a voter’s ID match that in the poll book, some voters were turned away for a mismatched address when the law was briefly in effect for a low-turnout judicial primary in 2012.
The training process is made all the harder by the fact that Wisconsin has what Ho called the most decentralized election system in the nation, with over 1,800 independent municipal clerks.
Then there’s the problem of educating the state’s citizens, who until Friday had been assured that the law wasn’t in effect. The Government Accountability Board, which administers elections in the state, has said it has no budget for public education.
“It’s mathematically, logically, and physically impossible that by November 4, hundreds of thousands of voters will learn about the need for the photo ID, collect the multiple underlying documents to try to get an ID and exercise their most fundamental right, get to a DMV, and then obtain the ID suddenly required to vote since Friday afternoon,” said Kathy Culliton-Gonzalez, the Advancement Project’s director of voter protection.
Given the short time frame and the need for quick action, some observers had expected the law’s opponents to go directly to the U.S. Supreme Court. Ulin said they might still do that if the 7th Circuit declined the request to rehear the case. But, he said, “it’s very important to make sure that we … have exhausted all other avenues of relief.”
In a 2006 case, the Supreme Court upheld an appeals court ruling that put Arizona's voter ID law on hold in the lead-up to the election.
"Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls," Justice Kennedy wrote. "As an election draws closer, that risk will increase."
Ten of the appeals court’s 14 judges are Republican appointees. But one of those is Judge Richard Posner, who last year suggested he might have erred when he voted to approve Indiana’s voter ID law in 2008. That ruling was upheld by the U.S. Supreme Court in a crucial case that established the right of state’s to pass ID laws under certain circumstances.
Given his public comments, some observers have suggested Posner could recuse himself from a ruling on whether to rehear the Wisconsin case, and from the rehearing itself. But Ulin said his side doesn’t think that’s necessary.*
“We don’t see any reason why Judge Posner would need to recuse himself, and we expect he would participate fully,” Ulin said*. “I don’t think it’s apparent that Judge Posner has prejudged any of the issues in this case.”
Legal strategy aside, Ho said those pushing voter ID are deliberately trying to make it harder for people who might oppose them to get to the polls.
“There are three ways you win elections,” he said. “You can turn out the people who support you. You can convince the people who are undecided to vote for you. Or you can try to suppress people who might vote against you. And the hucksters behind voter ID laws have decided to opt for that last option. That’s not the way our democracy is supposed to work.”
*CORRECTION: These sentences originally misspelled the last name of John Ulin, a lawyer for Arnold & Porter who represents voters challenging the ID law.