The unthinkable has happened in Wisconsin. Just seven weeks before the midterm elections, a panel of Seventh Circuit judges has restored the state's strict voter ID law, which had been blocked by the courts for over two years. The decision will wreak havoc for election administrators and voters alike and could be outcome-determinative in a very competitive gubernatorial race. Normally a lower court's injunction is stayed to preserve -- not to eviscerate -- the status quo.
Before the Supreme Court of Wisconsin upheld the state's voter ID law, the federal court found it violated the U.S. Constitution and the Voting Rights Act, citing evidence that approximately 300,000 Wisconsin voters lacked a valid ID and that minority voters would be disproportionately disenfranchised and burdened by the scheme because many lack the necessary documents to obtain an ID such as a birth certificate. Last Wednesday, after nearly three years of refusing to budge an inch, the Walker administration revised DMV procedures to authorize alternative verification of U.S. citizenship. Voters lacking a birth certificate will request that DMV contact Wisconsin or other states' vital records offices to verify their birth. Just two days later, the Seventh Circuit heard oral argument in the two federal suits and within hours suspended the injunction, concluding this new procedure would cure the legal violations.
The court, however, was completely mistaken when it wrote that Wisconsin's voter ID law is "materially identical" to the Indiana law upheld by the Supreme Court in Crawford v. Marion County Election Board. This is wrong in four ways.
First, Indiana's ID law only applies to in-person voting, while Wisconsin's applies to in-person and absentee ballots. In November 2012, 664,597 Wisconsin voters (21.57%) cast absentee ballots. Alabama is the only other state that requires photo ID from absentee voters; even Texas's draconian voter ID law does not.
Second, Indiana accepts any photo ID that contains a name, bears an expiration date, and was issued by the U.S. or Indiana, while Wisconsin only accepts a Wisconsin driver's license or ID card, military ID, U.S. Passport, certificate of naturalization which is no more than 2 years old, tribal ID, and certain student ID cards.
Third, Indiana permits indigent voters to sign an affidavit instead of presenting an ID.
Finally, Wisconsin only accepts student IDs if they contain a signature, an issuance date, and an expiration date no later than two years after the election. While the University of Wisconsin System has taken steps to have their schools issue separate voting IDs to students, it is unclear whether other private and technical colleges have taken similar steps. In Indiana, a student ID only needs to have an expiration date.
Not only is Indiana's ID law more lenient than Wisconsin's, but the Supreme Court's decision in Crawford did not address the same legal issues. There was no Voting Rights Act claim in Crawford. Moreover, the Crawford plaintiffs' counsel had assembled almost zero evidence of actual harm to voters, whereas the plaintiffs here have assembled an extensive record documenting ID-less voters who cannot vote or will experience great difficulty in obtaining this license to vote. What the record does not contain is any evidence that the DMV's untested birth verification procedure will work. The plaintiffs needed to show copious evidence to win their injunction, but the state secured this win on the court's blind faith.
The court's decision is also extremely reckless. The state's non-partisan elections overseer, the Government Accountability Board (GAB), strives for stable, clear, and uniform rules and smooth electoral operations. But from poll worker training to execution on Election Day, this ruling is a disaster. Many poll workers have already been trained; nearly 12,000 absentee ballots have already been mailed out with no ID instructions and hundreds have already been voted and returned without ID; and, most importantly, many voters will show up at the polls or mail in an absentee ballot request without ID because GAB has simply not been given adequate resources and time for educating the public. Seven weeks is far too short a runway for this to take off. GAB has already been overwhelmed trying to educate voters on Wisconsin's new and unique documentary proof of residence requirement for all registrations.
In just four years, Wisconsin has become one of the country's most hostile states for voters. Courts change, though, and so does the law. But what can never be undone is the denial of an eligible voter's right to vote in this election because they could not navigate Wisconsin's constantly changing election laws and procedures.