Quick Reaction to Voter ID Decision

Yesterday's decision in NAACP v. Walker enjoining the voter ID bill may be hard to defend. It's  weakness is that there is not much law to support to it. Indeed, it is very hard to reconcile with Crawford v. Marion County Election Board, the United States Supreme Court decision upholding Indiana's voter ID bill.

Crawford was an equal protection case decided under the United States Constitution. There is no clearly recognized right to vote under the United States Constitution although the Wisconsin Constitution does have a suffrage provision. See Wis. Const. Art. III, sec. 1. The plaintiffs in NAACP brought there claims under that provision and Wisconsin's equal protection guarantee (Art. I, sec. 1) which can, at least under certain circumstances, be read to provide more limitations on the government than the federal equal protection guarantee (although it almost never is.)

Yesterday's decision survives only if the Wisconsin Supreme Court is willing to subject laws regulating voting to much more exacting scrutiny than the United States Supreme Court did in Crawford.

But I don't see that happening.Let's review.

Without rehearsing all of the legal niceties, reliance on the Wisconsin Constitution gives the plaintiffs an opportunity to argue that laws that may make it more difficult to vote should be subject to what lawyers call heightened scrutiny. Judge Flanagan accepted that argument, stating that the law must be subject to what is "strict scrutiny," i.e., that the law must be necessary to serve a compelling interest.

This is what I think won't hold up on appeal. While it may be superficially attractive to say that anything that makes it harder to exercise the "sacred" and "fundamental" right to vote should be held to this high standard, a little thought reveals that this is not a workable idea. Elections have to have rules. Rules will make it harder to vote than it might otherwise be. Recognizing this, courts have not always subjected rules regulating voting to "strict" or even "heightened" scrutiny. Rather, they have tended to do so only when the restriction on the voting rights of some group of electors has been severe or is wholly unrelated to the qualifications to vote and the rational administration of elections.

In Crawford, for example, one group of justices (Chief Justice Roberts, Justice Stevens and Justice Kennedy) employed an ad hoc balancing test to evaluate the Indiana law. Another group (Justices Scalia, Thomas and Alito) said that only severe restrictions on voting rights would be subject to strict scrutiny while others would be subject to a deferential standard. According to these justices, '[o]rdinary and widespread burdens, such as those requiring 'nominal effort' of everyone, are not severe." They saw the voter ID law as such a "non severe" burden and upheld it.

I suspect the Wisconsin Supreme Court will apply this less exacting standard. There is not much support for the circuit court's position that it will impose a higher standard. The court cites some older cases that are really not apposite.

The plaintiffs will still argue that there is a better evidentiary record here than there was in Crawford and that Wisconsin's law is more restrictive.

The evidentiary record, however, may not be as different as it appears. There was arguably even less record of a voting fraud problem in Crawford. Nevertheless, six members of the Court held that the state's interest in preventing and deterring voter fraud, dealing with inflated and inaccurate voter rolls and instilling voter confidence justified the law. Although there seems to be a better record here of how many persons lack ID, both the Stevens and Scalia groups seem to have been more interested in how many would lack ID after the provision of free ID for voting. The evidence cited by Judge Flanagan doesn't really do that.

The one thing that seems different about Wisconsin law is that, apart from religious objectors and certain people that are, for lack of a better word, "shut ins," there is no provision for voting without ID. Indiana allowed people who couldn't get an ID due to indigency to vote by affidavit although the process for doing that was not very easy.

But this is not be enough to uphold a facial challenge, i.e., one that strikes down the entire law. If this is a constitutional problem (and if the Wisconsin Constitution follows Crawford, that's far from clear), it may only mean that persons who are truly unable to obtain an ID will be excepted from producing one. It is unclear how many people that really is. Studies seeking to show that photo ID laws actually disenfranchise people, even though conducted by scholars who oppose ID, have been inconclusive.

Maybe there is a stronger case to be made. The decision has all the signs of being a rush job, citing incorrect provisions of the Constitution, garbling a few sentences and, most oddly, referring to Justice "William Scalia." My guess is that the judge wanted to get it out there as far in advance of the April election as he could. He may make a more persuasive case when he takes more time.

My guess is that the state will try to take an interlocutory appeal. One interesting thing to watch is whether the AG's office will choose, as it now may do, a court of  appeals district other then District IV (which sits in Dane County). Whatever it does, I think it is likely that the court of appeals will certify the matter to the state Supreme Court.