Judge finds Wisconsin voter ID law unconstitutional

A volunteer poll worker rings a bell to count votes at a polling station on November 6, 2012 in Richmond, Wisconsin.
A volunteer poll worker rings a bell to count votes at a polling station on November 6, 2012 in Richmond, Wisconsin.

In a major victory for voting rights, Wisconsin's voter ID law has been struck down by a federal court, which found that it illegally discriminates against racial minorities.

It's the first time any federal court has struck down a voter ID law without relying on Section 5 of the Voting Rights Act (VRA), which was neutered by the Supreme Court last year. As such, it offers hope that even a weakened VRA can in some cases be used to stop the recent wave of Republican-led voting restrictions.

In a ruling released Tuesday afternoon, District Court Judge Lynn Adelman found that the law, passed in 2011, violates both the Voting Rights Act and the U.S. Constitution's 14th Amendment. He issued an injunction barring the state from enforcing the law.

"The court’s decision today vindicates the voting rights of all Wisconsin citizens," said Dale Ho, the director of the ACLU's Voting Rights Project, which led the legal effort against the law.

"I am disappointed with the order and continue to believe Wisconsin's law is constitutional.," said Attorney General J.B. Van Hollen, a Republican, in a statement. "We will appeal."

The ruling continues a string of wins for voting rights advocates across the country. Last week, a state court struck down Arkansas's voter ID law. And in January, a state judge in Pennsylvania struck down that state's voter ID law.

But this one could have even bigger implications if it stands. Never before has Section 2 of the VRA, which bars racial discrimination in voting, been used to strike down a voter ID law. Similar challenges, filed by the U.S. Justice Department, are currently pending against Texas's voter ID law and North Carolina's sweeping voting law, which includes a voter ID component.

The ruling decisively rejects the logic of voter ID laws. “Virtually no voter impersonation occurs in Wisconsin," Adelman writes, "and it is exceedingly unlikely that voter impersonation will become a problem in Wisconsin in the foreseeable future.

Rejecting the state's claim that the law is needed to promote public confidence in elections, Adelman writes, "Perhaps the reason why photo ID requirements have no effect on confidence or trust in the electoral process is that such laws undermine the public’s confidence in the electoral process as much as they promote it.”

Most importantly, Adelman lays out how Section 2 of the VRA can apply to voter ID.

“Section 2 protects against a voting practice that creates a barrier to voting that is more likely to appear in the path of a voter if that voter is a member of a minority group than if he or she is not," she writes. "The presence of a barrier that has this kind of disproportionate impact prevents the political process from being ‘equally open’ to all and results in members of the minority group having ‘less opportunity’ to participate in the political process and to elect representatives of their choice.”

But Rick Hasen, a prominent election law scholar, cast doubt on whether Adelman's view will survive the appeal.

"It is not clear whether the appellate courts will agree or not agree with this approach, which would seem to put a number of electoral processes which burden poor and minority voters up for possible VRA liability," Hasen wrote on his blog Wednesday afternoon.

An appeal would land before the U.S. Court of Appeals for the Seventh Circuit, possibly giving Judge Richard Posner a fascinating chance for a do-over. Posner said late last year that he erred in upholding Indiana's voter ID law—a decision upheld by the U.S. supreme Court—because he didn't understand at the time how such laws can suppress the vote.