More on Voter ID and what's next

I was struck by a couple of things in Judge Neiss' decision in League of Women Voters v. Walker. The first is how short  it is. The decision is not even eight full pages including three unusually long quotes from other decisions that are either inconclusive or unhelpful. The second is that much of what is there is given over to rhetoric better suited to affirming conclusions already reached than to legal analysis supporting those conclusions. Both of these characteristics lead to a number of unanswered questions.

First, the theory in this case is a bit different than last week's case, NAACP v. Walker. The idea here is that Art. III, secs. 1 and 2 of the state Constitution authorize the legislature to pass certain types of laws regarding voting. Art. III, sec. 1 provides that everyone who is a United States citizen over 18 who is resident in an election district is a qualified elector of that district. Art. III, sec. 2 states that laws may be passed defining residency, providing for registration and absentee voting, excluding certain defined classes of persons from suffrage and extending suffrage.

Judge Niess says that a photo identification requirement is not among the types of laws authorized by the Constitution. But this seems to be clearly wrong. The legislature certainly can pass laws enforcing the provisions of Art. III, secs 1 and 2. Judge Niess recognizes this, conceding that the legislature has implicit power to regulate elections.

That unavoidable concession would seem to be a rather serious obstacle to the plaintiffs' position. The photo ID law is quite clearly a law designed to enforce Art. III, sec. 1's definition of a qualified voter and Wisconsin's registration scheme which is authorized by Art, III, sec. 2. In other words, it is a way to verify that the person attempting to vote is that person who has registered to vote in the district (and is, therefore, a US citizen over the age of 18 who resides in the district).

You may not think it's necessary or a good idea, but that's not the legal question. If the law cannot stand, it must be because, even though it is within the legislature's power, it burdens the right to vote in some constitutionally impermissible way.

Unfortunately the decision simply assumes its conclusion. It doesn't really tell us why or even how we are to go about distinguishing between permitted and forbidden burdens. It asserts that the law abridges the right to vote, but doesn't explain how. To be sure, it imposes requirements that, if not complied with, will result in an inability to vote. But many permissible regulations of elections do that. If you don't comply with registration requirements, you can't vote. If you don't comply with the requirements of obtaining an absentee ballot or show up at the right polling place at the right time and during the right hours, you can't vote.

So it can't simply be that the law imposes some mandatory condition on exercise of the franchise. What it is about photo ID that is different and, more importantly, what is the standard by which its burden on the right to vote is to be assessed? The decision doesn't say. The court makes no finding of facts because it believes that no findings of fact are necessary. The decision refers to affidavits that have been filed but does not rely on (or explain) them, ultimately asserting only that there may be some people who lack the "financial, physical, mental, or emotional" resources to comply. (Emphasis supplied.)

What does that mean? Is it that there are some people who cannot get an ID? If so, who are they? Assuming that a few such people exist, does that justify striking the entire law? If there is always some way to get an ID, is it nevertheless a constitutional problem that the law makes it "too much trouble" to vote? If that's so, then what is the standard by which we determine how much trouble is too much?

I know what the plaintiffs can and cannot say about these matters. But I don't know how, for the court, they added up to a constitutional violation - at least not in any way that can be measured against the applicable constitutional language and case law.

So what's next? This case was filed before change in the venue law so that the appeal is to District IV of the Court of Appeals. Last week's case cannot be appealed to District IV, but must be venued in another district of the state's choosing. I would expect both courts to certify the respective cases to the state Supreme Court.