Not long ago in these virtual “pages,” I opined that judges were beginning to “get it” -- to understand that the enticing but superficial reasonableness of requiring photo ID to vote is far from the whole story. Yesterday, we encountered several judges who don’t get it at all, and Wisconsin’s voters are the worse for it.
League of Women Voters v. Walker and Milwaukee Branch of the NAACP v. Walker were split decisions in which majorities of the Wisconsin Supreme Court held the state’s strict photo ID law (”Act 23”) constitutional under the Wisconsin constitution, the same state constitution whose explicit right to vote provision led to contrary rulings by the trial courts in both cases.
It is tempting at this point simply to quote extensively from the dissenters, among whom Shirley Abrahamson, the octogenarian Chief Justice of the court, stands out in her steadfast refusal to follow the majority’s tortured logic -- or rather, tortured conclusion. It cannot really be called logic.
In NAACP, for example, the court construed a state regulation – not even properly before it – that explicitly required certain documentary proof in order to receive the free ID. Recognizing that obtaining those underlying documents may involve a fee, the court “saved” the regulation, and thus Act 23, by declaring that the need for underlying documents may be excused (though granting such an excuse rests in the discretion of state bureaucrats). Therefore requiring photo ID does not constitute an undue burden. Therefore it must be analyzed under a rational basis test. Therefore as long as it is rationally related to a legitimate government interest, it is constitutional.
What is the legitimate government interest? Prevention of fraud, of course. Never mind that the one example of fraud advanced by the state in both cases was allegedly committed by a supporter of Governor Walker in his recall election, who has now been indicted on 13 felony counts of voter fraud for, inter alia, registering more than once, voting multiple times, voting where he didn’t live, and lying to election officials. None of these offenses would have been prevented by the strict photo voter ID law at issue in the case, and indeed, all of them were discovered without such a law in effect.