Late Friday afternoon, a panel of Democrat-appointed judges on the Sixth Circuit upheld a preliminary injunction from a Democrat-appointed district court judge striking down Ohio’s cuts to early voting. Two hours earlier, however, a trio of Republican-appointed judges on the Seventh Circuit overturned an injunction from a Democratic judge blocking Wisconsin’s voter ID law.
This is why elections matter. And the courts are increasingly becoming the arbiters of who does and does not get to participate in them.
In May, Wisconsin district court Judge Lynn Adelman issued a strong decision invalidating the state’s voter ID law. Three hundred thousand registered voters in Wisconsin did not have a government-issued ID, Adelman found, and those without ID were disproportionately black and Hispanic. Wisconsin presented no evidence of voter fraud to justify the burdens of the new law.
The court axed Adelman’s ruling just hours after hearing the appeal, in a swift and stunning decision that allows Wisconsin to immediately implement its controversial law less than two months before the midterms.
The court’s one-page opinion said:
The district court held the state law invalid, and enjoined its implementation, even though it is materially identical to Indiana’s photo ID statute, which the Supreme Court held valid in Crawford v. Marion County Election Board. It did this based on findings that it thought showed that Wisconsin did not need this law to promote an important governmental interest, and that persons of lower income (disproportionately minorities) are less likely to have driver’s licenses, other acceptable photo ID, or the birth certificates needed to obtain them, which led the court to hold that the statute violates Section 2 of the Voting Rights Act
After the district court’s decision, the Supreme Court of Wisconsin revised the procedures to make it easier for persons who have difficulty affording any fees to obtain the birth certificates or other documentation needed under the law, or to have the need for documentation waived. This reduces the likelihood of irreparable injury, and it also changes the balance of equities and thus the propriety of federal injunctive relief. The panel has concluded that the state’s probability of success on the merits of this appeal is sufficiently great that the state should be allowed to implement its law, pending further order of this court.
The appeals court ruling is suspect on a number of fronts.
1. The Crawford case was not filed under the Voting Rights Act and did not center on racial discrimination in voting.
Section 2 of the VRA prohibits a voting system where the “totality of circumstances” shows that minority voters “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
Adelman found that was the case in Wisconsin. “The evidence adduced at trial demonstrates that this unique burden disproportionately impacts Black and Latino voters,” he wrote. Data from the 2012 election “showed that African American voters in Wisconsin were 1.7 times as likely as white voters to lack a matching driver’s license or state ID and that Latino voters in Wisconsin were 2.6 times as likely as white voters to lack these forms of identification.” According to a University of Wisconsin study, 78 percent of black men ages 18–24 in Wisconsin lack a government-issued ID.
In Crawford, the Supreme Court said that Indiana had a compelling interest in preventing voter fraud, even though the state presented no evidence of voter fraud to justify the law. Six years later, however, it’s clear there’s no practically no evidence of voter impersonation in America, whereas the burdens of voter ID laws are much better understood.
“The evidence at trial established that virtually no voter impersonation occurs in Wisconsin,” Adelman wrote. “The defendants could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past…. It is absolutely clear that Act 23 will prevent more legitimate votes from being cast than fraudulent votes.”
The absence of a compelling state interest and the presence of a discriminatory impact on blacks and Hispanics—which was not the case in Indiana—led Adelman to block the law.
2. Justice John Paul Stevens, who wrote the Crawford decision, is now a critic of voter ID laws.
“My opinion should not be taken as authority that voter-ID laws are always OK,” he told The Wall Street Journal last year. “The decision in the case is state-specific and record-specific.”
Stevens now says he agrees with Judge Souter’s dissent in the case. “As a matter of actual history, he’s dead right. The impact of the statute is much more serious” on poor, minority, disabled and elderly voters than the evidence in the 2008 case indicated, Stevens said.
3. Approving a law of this magnitude less than two months before a major election is certain to cause electoral chaos. Wisconsin’s voter ID law has been blocked since March 2012—in four different lawsuits in state and federal court.
Nine percent of Wisconsin’s electorate lacks a government-issued ID, compared to Indiana, where 99 percent of registered voters had ID.
Even if these hundreds of thousands of voters possess the underlying documentation to obtain a voter ID—like a birth certificate (seven witnesses at the trial didn’t have access to theirs)—they’d still have trouble getting one.
According to an amicus brief filed by One Wisconsin Now, 257,000 voting-age Wisconsinites don’t have a car in their household. Moreover, only thirty-three of Wisconsin’s ninety-two DMVs are open full-time during business hours. Wisconsin is very different from Indiana in that respect, notes the brief:
41 [DMVs] are open just two days each week, seven are open just a few hours for one day each month, and three are open just one day every quarter.… Only one DMV service center in the entire state of Wisconsin is open on a Saturday. No other DMV in the entire state operates in the evenings or on weekends.
Nearly all of Indiana’s 140 BMVs are open five days a week, Wisconsin has only 33 full-time sites; Indiana has 124 that are open on the weekends, Wisconsin has one.
According to the DMV website, the 92 DMV service centers are open for a combined total of approximately 9000 hours per month. If the 330,000 electors [without ID] attempted to obtain their ID during the one-month period preceding the election, the DMV would need to process on average 37 eligible electors each hour, every day of operation for the entire month.
4. Wisconsin Republicans also eliminated early voting hours on nights and weekends in 2014, which further reduces access to the polls. Over 250,000 Wisconsinites voted early in 2012, one in twelve overall voters, favoring Obama 58 to 41 percent over Romney.
Take a look at this chart:
It just so happens that Wisconsin Governor Scott Walker, a major proponent of voter ID laws and cutting early voting, is locked in a tight re-election race against Democrat Mary Burke. Is making it more difficult for people to vote his strategy for victory?