(Update) Wisconsin voter I.D. trial concluded, decision pending

Posted by AzBlueMeanie:

Last week the voter I.D. trial in Wisconsin federal district court concluded. The Milwaukee Journal Sentinel reported, Trial of two challenges to Wisconsin's voter ID law concludes:

The plaintiffs showed that tens to hundreds of thousands of Wisconsin residents lack one of the qualifying IDs, and many also lack the documents required to get the free ID the state supplies for voting — usually a birth certificate.

The witnesses detailed how they sometimes had to travel to other states to try to get certificates. Some voters, born in the South decades ago, never had formal birth certificates. In Wisconsin, the Vital Records division sometimes required a photo ID to get a birth certificate, a kind of Catch 22.

As evidence that the law was providing ways for everyone to vote, [Assistant Attorney General Clayton] Kawski noted that since Wisconsin began offering its free ID service, more than 217,000 have been issued, and in Milwaukee County mostly to minorities.

But plaintiffs' counsel argued that the numbers prove the disparity, that far fewer minorities have driver's licenses, passports or the other limited forms of ID that would allow someone to vote.

[John] Ulin compared the process to so-called grandfather clauses in the Jim Crow South that spared most white voters from onerous requirements meant to keep blacks from polls. Residents who have had driver's licenses probably got them, and continually renew them, without ever having to show a birth certificate, Ulin said, while minorities seeking photo ID for the first time must present one.

Officials from the state Government Accountability Board testified that they had no authority over fellow bureaucrats at the state Department of Transportation's Division of Motor Vehicles, given the responsibility under Act 23 of providing a free state ID for anyone who needed one to vote.

Jim Miller, a DMV official, testified that some DMV supervisors had discretion to issue an ID when a person's birth certificate might spell a name slightly differently from other documents.

While the state saw the instances of making exceptions as a sign of accommodation, the plaintiffs' attorneys cited it as another example of the unfairness of the law, because the only voters who got the exceptions were those who knew enough to complain to their legislator or the governor or otherwise had the knowledge and means to escalate the concerns to top supervisors.

Section 2 of the Voting Rights Act is concerned with impact of laws on minority voters, regardless of a legal intent.

But Kawski, the state's lawyer, told U.S. District Judge Lynn Adelman that bare statistics don't meet the threshold of impact, and that without real damages to prospective voters there's no violation.

Adelman is not expected to decide the case until early next year.

Assistant Attorney General Clayton Kawski is WRONG. Statistical evidence is the heart and soul of any disparate impact case. In the employment nondiscrimination context, the Disparate Impact theory of liability "will succeed if the plaintiff can prove that [neutral] employment policies had the effect of excluding persons who are members of Title VII's protected classes." Once a disparate impact is established, the burden of proof shifts to the employer, who "must justify the continued use of the procedure or procedures causing the adverse impact as a "business necessity."

"Proof of discriminatory motive is not required, because in these types of cases Congress is concerned with the consequences of employment practices, not simply the motivation." If the employer demonstrates that the requirement being challenged is a "business necessity," the burden of proof shifts back to the plaintiff who must then "show that other selection devices without a similar discriminatory effect would also serve the employer's legitimate interest in efficient workmanship."

In this case, the plaintiffs have demonstrated that an allegedly neutral voter I.D. requirement has a disparate impact on certain classes of voters, in this case, the elderly and minorities who more frequently lack the requisite documents to obtain the state-issued photo I.D. The burden of proof then shifted to the state of Wisconsin to prove "necessity" — the state argues it has a "legitimate and important interest" in preventing voter fraud, and ensuring the public believes elections are conducted fairly," said Kawski. "Attorneys for the plaintiffs countered there is no evidence of in-person voter impersonation, the only type of fraud that would be prevented by an ID requirement."

In my opinion, the state cannot possibly carry its burden of proof of "necessity" when the "voter fraud" the state claims it is preventing is virtually non-existent, while tens of thousands of Wisconsin residents may be denied their right to vote due solely to their lack of necessary documents to obtain a state-issued photo I.D. Kawski wanted the reporter above to believe that he met his burden of proof, and the burden of proof had shifted back to the plaintiffs to demonstrate "other [means] without a similar discriminatory effect that would also serve the state's legitimate interest."

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