I hate to say that I told you so. I really do. But not enough to refrain from saying it.
I have always thought that the argument that voter identification is unconstitutional because it imposes an "additional qualification" on voters to be imaginative but fundamentally flawed. The argument is that the Wisconsin Constitution says that the legislature may require voters to be over 18, citizens of the United States and residents of the districts in which they seek to vote. It says that the legislature may provide for registration and disqualify certain categories of voters, i.e., felons and persons who are incompetent. But, the argument goes, since the Constitution doesn't say the legislature can require photo identification, it can't.
The problem doesn't take a legal genius to identify. Photo ID is not an "additional qualification" outside of those listed in the Constitution, it is a means to ensure that the qualifications that the legislature can and has enacted are complied with, i.e,. it is a way to ensure that the person who seeks to vote is that person over 18 who is a United States citizen and resident of the district who has registered to vote.
Now you can argue that this is unnecessary or may not be the best way of doing that, but the courts don't get to decide what is "necessary" or "best." As the Court of Appeals ruled today, the legislature may enact reasonable election regulations so long as they are not so burdensome as to effectively deny the right to vote. Because that hadn't been proven, photo ID had to stand.
Today decision, in a case called League of Women Voters v. Walker, does not disturb a
separate injunction against the law in NAACP
v. Walker which remains pending before a different district of the Court of
However, it may
very well result in reversal in NAACP as
well. Here’s why.
Today’s decision makes
clear that, under the Wisconsin Constitution, the legislature may enact
reasonable election regulations unless a challenged regulation is so burdensome
that it effectively denies potential voters their right to vote. This is not
the standard that was applied by the court in NAACP. While we believe that case ought to be reversed and
dismissed, it would appear that, at minimum, the Court of Appeals must vacate
the NAACP decision and send the case back to the circuit court with instructions
to apply the proper standard.
Full disclosure: Along with my colleagues at the Wisconsin Institute for Law & Liberty, I
filed an amicus brief in League of Women Voters
on behalf of a diverse group of community leaders, including a
former lieutenant governor, a journalist, a retired Milwaukee police detective
who specialized in voter fraud, and leaders in the Hispanic and
African-American communities, urging that the court show appropriate deference
to the legislature and the law be upheld.
Cross posted at Purple Wisconsin