Recently, the U.S Supreme Court rejected an appeal to stop the implementation of a new voter identification law in Wisconsin that was brought by several civil rights groups. This law created a victory for republicans in the state and now Wisconsin is one of the 30 states with voter ID laws. Opponents however say this law is one of the strictest in the nation. Under this Wisconsin law, Wisconsin residents must present any of eight forms of identification, including in-state driver’s licenses, state-issued photo IDs for non-drivers and military IDs in order to vote. The state also accepts some student identification cards.
The district court for the eastern district of Wisconsin found that the law did not further State’s interest in promoting confidence in the integrity of the electoral process, it violated Fourteenth Amendment by imposing an undue burden on voters, and it violated the Voting Rights Act provision prohibiting states from imposing any voting qualification resulting in a denial or abridgement of the right to vote on account of race or color. Frank v. Walker, No. 11-CV-01128, 2014 WL 1775432 (E.D. Wis. Apr. 29, 2014) rev’d, 768 F.3d 744 (7th Cir. 2014) cert. denied, 135 S. Ct. 1551 (2015). The state appealed this decision up to the Court of Appeals for the 7th circuit who then reversed this decision and found that the statute does not violate the equal protection clause and does not violate the Voting Rights Act. Frank v. Walker, 768 F.3d 744 (7th Cir. 2014) cert. denied, 135 S. Ct. 1551 (2015).
Civil rights Groups led by the League of United Latin American Citizens then initiated an appeal to this decision up to the Supreme Court and argued that the 2011 state law violated the U.S. constitutional guarantee of equal protection and the 1965 Voting Rights Act. The civil rights groups are arguing that ID requirements disproportionately affect minority and low-income voters while doing little if anything to protect against fraud. The organizations pressing the Wisconsin appeal said 300,000 registered voters in that state lack a qualifying ID. Wisconsin officials in support of the law are arguing that it will impose a minimal burden on voters while providing more assurance of a fraud-free election. The Supreme Court however rejected this appeal. The law will not be in effect for the April 7th election but the Attorney General has noted that it will take effect for elections after that date, so it will be interesting to see how this new law effects voting in Wisconsin.
What was very interesting in these decision was that even though the 7th Circuit upheld the statute in line with their former decision to uphold the implementation of a voter id law in Indiana in Crawford v. Marion Cnty. Election Bd., 472 F.3d 949 (7th Cir. 2007) aff’d, 553 U.S. 181, 128 S. Ct. 1610, 170 L. Ed. 2d 574 (2008), Judge Posner had a differing attitude when it came to the Wisconsin decision. In a dissent for a denial of a petition for a rehearing en banc, judge posner, joined by judges Rovner, Williams, Wood and Hamilton states:
The Supreme Court upheld an Indiana law requiring photo identification of voters. The panel calls Wisconsin’s law “similar.” It would be more accurate to say that the laws belong to the same genre, namely strict photo ID voter eligibility laws. The two states’ laws are importantly dissimilar, not only in their terms but in the evidentiary records of the two cases. Although in Crawford as in this case the record contained no evidence of in-person voter impersonation at polling places “actually occurring in Indiana at any time,” there had been scattered instances of such fraud in recent American elections. 553 U.S. at 195–96, 128 S.Ct. 1610. And there was no evidence that the Indiana law was likely to disenfranchise more than a handful of voters. Given the record, the Supreme Court was unwilling “to perform a unique balancing analysis that looks specifically at a small number of voters who may experience a special burden under the statute and weights their burdens against the State’s broad interests in protecting election integrity,” especially since “on the basis of the evidence in the record it is not possible to quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified.” Frank v. Walker, 773 F.3d 783, 784 (7th Cir. 2014).
What is interesting about this excerpt is that he seems to be against the voter id law in this current case but he wrote the majority opinion in Crawford v. Marion County which upheld that the Indiana law was not an undue burden on right to vote and recognized the valid concerns with preventing fraud. This case went on to be affirmed by the Supreme Court as well. In that case he states, “On one side of the balance in this case is the effect of requiring a photo ID in inducing eligible voters to disfranchise themselves. That effect, so far as the record reveals, is slight. The principal evidence on which the plaintiffs relied to show that many voters would be disfranchised was declared by the district judge to be “totally unreliable” because of a number of methodological flaws; and we accept her finding.” Crawford v. Marion Cnty. Election Bd., 472 F.3d at 952. But then in the dissent for the rehearing in the Frank v. Walker decision he specifically lays out the obstacles must one go through to get a voter id to vote and how this can serve as a burden. Frank v. Walker, 773 F.3d at 786.
His dissent to the denial of a rehearing, does not fail to humor us, as Judge Posner never does. He states, “Some of the “evidence” of voter-impersonation fraud is “downright goofy, if not paranoid, such as the nonexistent buses that according to the “True the Vote” movement transport foreigners and reservation Indians to polling places. Frank v. Walker, 773 F.3d at 791. Based on his new opinion, it does not seem like he is admitting his prior decision is wrong but more-so distinguishing the current case to that of the Crawford v. Marion Cnty. Election Bd case and emphasizing the change in circumstances that have occurred since then. He states,
“Crawford was decided by the Supreme Court almost six and a half years ago, on the basis of the evidence presented in that case and the particulars of the Indiana statute. The decision does not resolve the present case, which involves a different statute and has a different record and arises against a background of a changed political culture in the United States. It is a disservice to a court to apply its precedents to dissimilar circumstances.” Frank v. Walker, 773 F.3d at 784.
He also states that photo ID requirements are highly correlated with a state’s having a Republican governor and Republican control of the legislature and appear to be aimed at limiting voting by minorities. Id. at 792. But on the other hand it appears that more voters have showed up to vote in the Indiana elections since the passage of the Indiana voter ID law, and the state also backed a democrat candidate for president in the 2008 election for the first time since 2008. So it was surprising that he cited present conditions when it seems that the Indiana decision has had little negative impact thus far. It is still unclear, however how the new voting law has affected the minority and immigrant population.
Nonetheless, it will be interesting to see how the law plays out in Wisconsin. Will the number of voters rise, or will the increased burden instill a large event on the number of minority and immigrant voters coming out to Wisconsin elections as well?