Photo ID will stand

The League of Women Voters has finally filed their lawsuit challenging Wisconsin's new voter identification law. One thing jumps out immediately. There are no plaintiffs alleging that the law disenfranchises them. One normally tries to get someone impacted by the law. That didn't happen here. I suspect that the problem is that there is no one who can't get the requisite photo identification although one would have expected to see plaintiffs alleging that obtaining this identification is "unduly burdensome." There is at least an atmospheric problem from the start.

Before the lawsuit was filed, I debated the merits with LWV's counsel, Lester Pines, on, I kid you not, the Voice of Russia. I don't have a link for that but I did discuss the case Monday afternoon on Ben Merens' show.

I think the case is a clever way around federal precedent that would leave a claim based on the federal constitution dead in the water. In Crawford County v. Marion Election Board, the United States Supremee Court rejected a facial challenge to Indiana's photo ID law. Lester and his client have instead relied on Article III of the Wisconsin, sec. 1 of the Wisconsin Constitution which extends suffrage to United States citizens who are 18 years of age or older and who reside in an election district in the state. Article III, section 2 identifies laws that may be enacted to implement this right of suffrage including, defining residency, providing for registration and absentee voting and excluding from the right of suffrage, subject to certain restrictions, those convicted of a felony or adjudicated to be wholly or partially incompetent.

The argument is that the law "excludes" from the right of suffrage those who lack photo identification complying with the law. Since Article III, sec. 2 doesn't expressly authorize that, it can't be done.

As I said, it's clever but it won't work. Here's why.

First, it is unclear that Article III, sec. 2 exhausts the reasonable regulations on exercise of the franchise. Unlike the United States Congress (in theory if not always under recent practice), the Wisconsin legislature has plenary powers. It does not need express authorization in the state constitution in order to be able to do something and, in fact, there are all sorts of regulations on the exercise of the franchise, i.e., limited hours during which a polling place is open and limitation of the number of places in which a ballot may be cast, restriction on ballot access and on primaries that are not, strictly speaking, "authorized" by Article III, sec. 2.

But perhaps these can be fairly inferred from the nature of voting and the plaintiffs will argue that the description of certain forms of regulation in Article III, sec. 2 implies the proscription of those that have not been described. They may even invoke time honored maxim of construction, expressio unius est exclusio alterius ("("the express mention of one thing excludes all others").

Of course, the problem with maxims of construction is that there is always another one that contradicts it. We needn't linger long over this because the identification requirement is fairly inferable from the identification of things that the state is clearly permitted to do. It is a way of ensuring that the person who is casting a vote actually is the United States citizen over the age of 18 who resides in the district and is, therefore, entitled to vote.

To be sure, there is no requirement that the state enact this means of verification, but neither can Article III be read to prohibit it. The law doesn't disenfrancise those without a photo id anymore than other laws disenfranchise those who find it difficult to register, obtain an absentee ballot or make it to the polls. Rather, it enforces (as the caption of sec. 2 has it, "implements") those laws and regulations that the legislature is empowered to enact.

At this point, the plaintiffs will argue that photo id is "too burdensome" and "not necessary" but that's thin gruel for a constitutional challenge. It goes to the whether photo identification is good policy and courts aren't going to address that. These arguments might work if the burdens imposed were tantamount to a denial of due process but the decision of the United States Supreme Court in Crawford makes that hard to argue - even in an action brought under the state constitution.