by Joshua A. Douglas, Robert G. Lawson & William H. Fortune Associate Professor of Law, University of Kentucky College of Law
*This post was originally published in the Milwaukee Journal Sentinel
The Wisconsin Supreme Court on Thursday issued two decisions that had the effect of upholding the state's strict voter ID requirement. Crucial to the court's decisions was its finding that, once it modified a different rule, the voter ID law did not impose too substantial of a burden on qualified voters who do not otherwise have the necessary identification.
The split decisions entail both breathtaking judicial activism and ignorance regarding the difference between the federal and state constitutions.
First, the conservative-leaning majority found that the voter ID law imposed a severe burden on voters because it would cost money for voters to gather the underlying documentation they might need — such as a birth certificate — to obtain the "free" voter ID. But the majority then forges ahead to adopt a "saving construction" of a state administrative rule to conclude that the law does not, really, require voters to pay money to obtain the documentation. It rewrites the administrative rule so that the voter ID law does not become an unconstitutional poll tax.
To justify this maneuver, the court cites a U.S. Supreme Court decision that states "where a saving construction is 'fairly possible,' the court will adopt it." But that U.S. Supreme Court case said no such thing; it instead noted that if a saving construction of the very statute at issue is possible, then the court should avoid the constitutional question and decide the case under that statutory ground.
Here, by contrast, there was no "fairly possible" construction of the voter ID law. Instead, the court requires state administrators to invoke their "discretion" under a separate administrative regulation — one that was not at issue in the case — to give voter IDs to voters who must pay money to obtain the underlying documentation.
Second, the court conflated the U.S. and Wisconsin constitutions to uphold the law. The plaintiffs challenged the law under the Wisconsin constitution provision that provides, "Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district." The plaintiff's argument, in essence, was that the burdens associated with obtaining the required voter ID took away the constitutionally granted right to vote for some citizens.