Voting rights advocates want the Supreme Court to rule on Wisconsin’s strict voter ID law—and if they get their way, the impact could go way beyond the Badger State.
Lawyers for the challengers to Wisconsin’s ID measure filed documents Wednesday asking the high court to review a ruling last October by a federal appeals court that upheld the controversial law.
"Efforts to restrict access to the ballot demand a full and thorough hearing, which is why we are asking the Supreme Court to review this case and ultimately strike down Wisconsin's voter ID law,” said Dale Ho of the ACLU, which is representing the challengers.
It’s by no means certain that the Supreme Court will take the case. If it says no, the law would stay in effect.
But experts say there’s a good chance the court will take it. That’s because federal courts have lately issued conflicting rulings on whether and under what circumstances the Voting Rights Act (VRA) bars voter ID and the other major statewide voting restrictions that have proliferated since 2010. So the Supreme Court may see a need to clarify things with a broad ruling about the scope of the VRA in advance of the 2016 presidential election.
Rick Hasen, a prominent election law expert, wrote that there’s a “pretty good chance” the justices will weigh in. North Carolina also has asked the Supreme Court to review a ruling striking down parts of that state’s restrictive voting law. But that case hasn’t yet gone to trial, so the Wisconsin case may be the better candidate.
If the high court does take the case, it could affect similar voter ID laws in Texas, North Carolina, and a slew of other mostly southern states. Texas's voter ID law also is in limbo after being struck down as a racially discriminatory poll tax, then put back into effect for last fall's election.
A ruling that limits the type of situations in which the VRA applies could open the floodgates for other states to pass voter ID or other restrictions. The court could even issue a ruling that makes the landmark civil rights law all but useless for stopping anything but the most explicit forms of racial discrimination. That’s a goal some conservatives lawyers have been driving at for years, and one with which Chief Justice John Roberts appears to have some sympathy.
Already, Wisconsin’s law has had a tortured path through the courts. Passed by Republicans in 2012, it was soon blocked by a court and remained on hold while the state fought to get it back into effect. Last April, a federal judge struck the law down, ruling that it violated the VRA’s ban on racial discrimination in voting. But in October, an appeals court panel reversed that decision and put the law back into effect. The Supreme Court then blocked the law for last November’s election, likely on the grounds that reviving it with so little time before Election Day would cause confusion.
But the justices didn’t rule on the merits of the case. As a result, the law technically went back into effect the day after the election, and remains in place.
Wisconsin’s law allows only a limited range of photo IDs. Over 300,000 registered Wisconsin voters—disproportionately blacks and Latinos—lack the required ID, according to evidence presented by voting rights advocates at trial.
The state has done little to make getting ID easier. Some counties have ID-issuing offices that are open only every few weeks. To get an ID, voters must present a birth certificate, something many people without ID also lack. That’s especially true for many older blacks born in the Jim Crow south, who may never have been given a birth certificate. After the law was briefly put back into effect last fall, state officials, under pressure, created a process for voters without a birth certificate to get an ID. But it doesn’t work for those born out of state—a group that’s disproportionately non-white.
Wisconsin Republicans even stood in the way of a request by state election administrators for money to publicize the ID requirement.
The appeals court ruling that reinstated the ID law, issued by a panel of three Republican-appointed judges after some absentee voting had already occurred, was striking for its blithe tone in upholding a law that could deny thousands their most basic rights. Hasen called it “heartless and dismissive,” and “horrendous.”
In the opinion, Judge Frank Easterbrook reasoned 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.”
In their request to the Supreme Court, the ACLU lawyers wrote that Easterbrook's ruling "piles error on error," and "eviscerates the [VRA's] purpose of eliminating racially discriminatory voting practices."