BREAKING: Federal Judge Strikes Down Wisconsin Voter ID Law (Unfairly Burdens Poor, Minorities)

[Gothmog]

19. Here is a good explanation of this opinion from Professor Hasen

Prof. Hasen is an expert on election law. http://electionlawblog.org/?p=60972

Here are my initial thoughts on Frank v. Walker, in which a federal district court held that Wisconsin’s voter id law both violates the Constitution and Section 2 of the Voting Rights Act:

1. This is about the best possible opinion that opponents of voter identification laws could have hoped for. It is heavy on both facts and on law. It is thoughtful and well written. It finds that a voter id law serves neither an anti-fraud purposes (because “virtually no voter impersonation occurs in Wisconsin and it is exceedingly unlikely that voter impersonation will become a problem in Wisconsin in the foreseeable future”) nor voter confidence purposes. It finds that it burdens lots of voters (up to 300,000) voters. It finds these burdens fall especially on Black and Latino voters and that the reason is does is poverty, which is itself the result of prior legal discrimination.It enjoins enforcement of the law for everyone, and expresses considerable doubt that the Wisconsin legislature could amend the law to make it constitutional. It is about as strong a statement as one might imagine as to the problems the voter id law.

2. Wisconsin is likely to appeal, and it is unclear how the case will fare in the 7th Circuit and possibly the Supreme Court. (Further making this complicated is that there are state case putting voter id on hold and now pending before the State Supreme Court.) A special twist is that Judge Posner of the Seventh Circuit made controversial remarks about voter id laws being a means of voter suppression, and expressing regret about his earlier decision in the Indiana voter id case. It is not clear what role, if any, he will play in any appeal.

3. Both the constitutional law and VRA section 2 claims are controversial. On the con law point, the judge purports to apply the “Anderson-Burdick” balancing test that the Supreme Court applied in upholding Indiana’s voter id law in the Crawford case. The judge purports to apply Crawford, but reaches a different result. It is not clear that this is a fair application of that test–which seems to suggest at most that the law be upheld as to most voters but create an “as applied” exemption for a specific class of voters. The judge said that this was not practical in this case given the large number of Wisconsin voters who lack id. It is not clear that the appellate courts will agree.

4. On the VRA issue, this is the first full ruling on how to adjudicate voter id vote denial cases under section 2. The key test appears on page 52 of the pdf: “Based on the text, then,
I conclude that 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. 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.” The judge also approaches the causation/results question in a straightforward way. 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.

In sum, this is a huge victory for voter id proponents. But time will tell if this ruling survives.

I would love to see Judge Posner on the panel that hears this case so that he can undo some of the damage done in the Crawford case.

This case will be used in the Texas voter id case.