Two words stand out in the media coverage of a three-judge ruling requiring Wisconsin voters to provide a photo ID for the Nov. 4 election: “chaos” and “scramble.” Chaos describes the order to implement the stalled voter ID law just seven weeks prior to the election. Scramble is what Wisconsin’s elections officials and voting rights advocates are doing to respond to the order.
Here’s what you need to know about Wisconsin’s voter ID ruling.
Question: How did this happen?
Answer: There are a couple of court cases—in state court and in federal court—that have challenged the voter ID law. These cases successfully blocked the law up until two weeks ago; a photo ID was only required for one low-turnout primary in 2012.
In federal court, the American Civil Liberties Union (ACLU), League of United Latin American Citizens (LULAC) and the Advancement Project argued that the voter ID law violated the U.S. Constitution and Section 2 of the Voting Rights Act because it disenfranchised an estimated 300,000 qualified voters and placed an undue burden on minorities, the poor and the elderly. In April, U.S. Judge Lynn Adelman agreed, so voter ID remained on hold.
In separate cases in state court, the NAACP, Voces de la Frontera and League of Women Voters of Wisconsin were able to get the law put on hold until this summer, when the state Supreme Court upheld the law. However, in the decision written by Justice Patience Roggensack, the conservative majority took the extra step of changing the state’s administrative policy on issuing voter IDs. Opponents of the ruling asserted that the majority was legislating from the bench and overreached in its decision.
Question: What did the Walker administration do?
Answer: Armed with the state Supreme Court’s decision, the Walker administration challenged Adelman’s ruling in the 7th U.S. Circuit Court of Appeals in Chicago. The day before oral arguments on Friday, Sept. 12, the administration announced a new voter ID-issuing protocol that apparently follows the state Supreme Court’s direction to change the way it issues IDs. The press release announcing the new protocol states that the state Division of Motor Vehicles (DMV) and Department of Health Services (DHS) would no longer charge fees to verify an individual’s birth certificate or other documents that are required for a state ID card. That’s the evidence that the state Department of Justice used to argue that the state’s voter ID law wouldn’t unduly burden Wisconsin’s voters.
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The Walker administration’s revised voter ID regulations were so new that the opposing attorneys hadn’t seen them before oral arguments and the new policy hadn’t been filed in the case until after arguments, according to court documents.
Nevertheless, a three-judge panel in the 7th U.S. Circuit Court of Appeals—all of whom were appointed by Republican presidents—decided that these new regulations were good enough for Wisconsin. They did not rule on the merits of the opponents’ arguments, such as whether the law unconstitutionally disenfranchises 300,000 Wisconsin voters, a disproportionate share of whom are low-income, minority and elderly.
Question: Are the three GOP judges forcing the state to implement voter ID?
Answer: The three Republican judges seemed to have left it up to the state’s discretion. They wrote, “The State of Wisconsin may, if it wishes (and if it is appropriate under rules of state law), enforce the photo ID requirement in this November’s elections.” That said, the state is going ahead with implementation full steam.
Question: Won’t the Walker administration’s new rules allow everyone who needs an ID to get one?
Answer: That’s highly unlikely if not impossible, given that the election is less than seven weeks away. Roughly 300,000 qualified, registered voters don’t have proper IDs for voting. That means that more than 6,000 ID cards would have to be issued each day before the election just to enable these Wisconsinites to vote, Dale Ho of the ACLU’s Voting Rights Project argues. And up to 70,000 unregistered voters would need IDs as well. That’s why Ho called the ruling a “recipe for chaos.”
In addition, the new rules require voters to go to a DMV office to obtain a voter ID. But DMV offices around the state are only open sporadically. Roughly half of them are only open part-time. And the new rules don’t cover people who were born in other states or Puerto Rico. This, again, penalizes minority voters, since only 59% of African American Wisconsinites and 43% of Latino Wisconsinites were born in the state, compared to 75% of white Wisconsinites. The GAB estimates that it will take up to eight weeks to verify birth information for voters not born in Wisconsin, which means that these voters might not have a proper ID for the Nov. 4 election.
Question: Do I need a separate voter ID to vote?
Answer: No. You need a photo ID that the law says proves your identity. The GAB has a list of acceptable forms of IDs. They include a Wisconsin driver’s license (current or one that has expired after Nov. 6, 2012), a state-issued ID card, a military ID card, a U.S. passport and a few other forms of ID. It does not need to have the voter’s current address. However, those registering to vote will need to provide documents proving their identity and current address.
Since most student IDs do not comply with the law, the UW System announced it would issue ID cards, upon request, specifically for voting.
Question: What about absentee voters?
Answer: This one is tricky. Almost 12,000 absentee ballots were sent out and hundreds of completed ballots were returned before the decision requiring voter ID was handed down. Now, clerks must contact those voters to affirm their identity. The GAB has updated its absentee ballot forms to require voter ID. Voters must provide a copy of an acceptable ID when they request an absentee ballot. But those who are indefinitely confined, are members of the military, live overseas or are confidential electors are exempt from this requirement.
Question: Isn’t the state Government Accountability Board (GAB) prepared for implementing voter ID?
Answer: The GAB has an enormous task ahead of it between now and Nov. 4. When the voter ID law was passed in 2011, the GAB had prepared to roll out the new requirements in an eight-month public information campaign before a primary election. Now, it has less than seven weeks to inform voters, update materials and train 1,852 municipal clerks. Last week, GAB Executive Director Kevin Kennedy told reporters that it would use the materials it had developed back in 2011 and 2012. It’s updated bringit.wi.gov, which includes lots of user-friendly information. But the agency doesn’t have any funds in its current budget for public education and outreach. And Walker and the Republican-controlled Legislature haven’t said they would provide additional funding, either.
Question: Is this the end of the court challenges?
Answer: No. In the federal case, the ACLU and its partners have asked the full 7th Circuit Court of Appeals for an en banc rehearing of the ruling made by the three GOP-appointed appeals judges. This uncommon type of review would be done by 10 or so judges on the appeals court. In its emergency petition for an en banc review, the groups argued that the three judges’ decision “imposes a radical, last-minute change to procedures for conducting an election that is already underway. The risk of disenfranchisement from imposing such a last-minute disruption far outweighs the non-existent harm to the state of maintaining the status quo and not requiring photo ID for one more election. Supreme Court precedent and other Circuits uniformly caution against such eleventh-hour changes to election laws, even where those courts have approved such changes for future elections.”
In the state case, the NAACP Milwaukee Branch and Voces de la Frontera filed an emergency motion with the Wisconsin Supreme Court asking the court to delay the implementation of its decision upholding the law until after the November election. The groups argue that implementing the law at this late date will create confusion, uncertainty, prevent elections officials from conducting the election properly, and will disenfranchise many voters who won’t be able to obtain an ID.
As of press time, neither the federal or state courts have decided if they will take up either of these challenges.
