Last week brought two rare pieces of good news for voting rights advocates. In Wisconsin, Dane County Circuit Judge David Flanagan granted a temporary injunction, requested by the NAACP’s Milwaukee branch and immigration rights group Voces de la Frontera, preventing implementation of the state’s photo identification requirement for voting. Meanwhile, the Third Circuit of the US Court of Appeals reaffirmed a 1982 consent decree preventing the Republican National Committee from intimidating minority voters.
Unfortunately, voter intimidation and disenfranchisement will still occur, in Wisconsin and throughout the country.
The Wisconsin law, passed last spring, is facing four suits. The first, which is before Judge Flanagan with a trial set to start April 16, argues that a photo identification requirement violates the right of every citizen to vote guaranteed by the Wisconsin state constitution. The League of Women Voters has filed a similar suit, and argued their case last week in front of Dane County Circuit Judge Richard Niess.
Wisconsin Attorney General J.B. Van Hollen, a Republican, is appealing Flanagan’s injunction to the state Court of Appeals. It will ultimately end up in the Wisconsin State Supreme Court, which has a conservative majority. Much like their counterparts in the US Supreme Court, those judges reliably side with Republicans and conservatives. They are unlikely to overturn the law, which was passed by a Republican legislature and signed by Republican Governor Scott Walker. “The state will win this 4-3,” predicts Sam Munger, a researcher at the Center on Wisconsin Strategy, a think tank at the University of Wisconsin in Madison.
There are also two challenges to Wisconsin’s law in federal court. One, brought by the Advancement Project, argues that the law violates the Voting Rights Act (VRA). Another, brought by the American Civil Liberties Union, makes the same argument and also contends that it violates the Equal Protection clause of the 14th Amendment to the US Constitution. In southern states, such as Georgia and Texas, when voting rights advocates wish to challenge a photo ID law, they have a more powerful weapon at their disposal. Section 5 of the VRA governs only southern states with a history of racially discriminatory voting laws. In those states, showing a racially discriminatory impact can overturn a voting law. In Wisconsin, Section 5 does not apply and so a challenge must be brought under Section 2 of the VRA, which gives the state more leeway and places a higher burden of proof with regard to discrimination.
In 2007 the Supreme Court upheld Indiana’s photo ID requirement. That challenge was on constitutional grounds. That means the VRA Section 2 argument is untested, but experts say it is unlikely to prevail. While it is virtually impossible that the Supreme Court will overturn a similar law on the same constitutional grounds, it could hold that an otherwise constitutional measure violates the 14th Amendment when applied to certain groups.
The consent decree between the Democratic and Republican National Committees is unlikely to be overturned. However, it does not prevent voter intimidation from happening. The agreement, which dates back to 1982, prevents the RNC from coordinating efforts to harass, disenfranchise or discourage likely Democratic voters by challenging their right to vote at the polling place. The consent decree is a court-supervised settlement to a suit brought at the time by the DNC alleging that RNC programs to prevent voter fraud resulted in the intimidation of minority voters, violating the Constitution and the VRA. But that just means that such efforts are left to state and local parties or outside organizations.
The RNC sought to get rid of the consent decree, and a district Court ruled that it would remain in place for another eight years. A three-judge panel on the Appeals Court upheld continuing the consent decree and raised the possibility of keeping it beyond the eight-year time frame. As the ruling noted, the RNC has not been able to produce evidence of actual voter fraud taking place. Therefore, it is hard to see why they require the freedom to conduct programs meant to combat it that may have a discriminatory impact. “It’s important as symbolic victory rather than actually preventing RNC from doing anything,” says Rick Hasen, an election law expert at UC Irvine.
This may not even be the final word. As Hasen noted in a blog post, “I do not know if the RNC will try for a rehearing en banc in the third circuit, but a motion for an injunction pending appeal to the Supreme Court Justice in charge of the Third Circuit, Justice Alito, does not seem to far-fetched to me.”