Voter ID ‘unconstitutional’ in Wisconsin and Pennsylvania

Rick Hasen at Electionlawblog breaks down the Voter ID case in Wisconsin, which included a Section 2 Voting Rights Act enforcement claim. Breaking News: Federal District Court Strikes Wisconsin Voter ID in ACLU Case:

Here are my initial thoughts on Frank v. Walker, in which a federal district court held that Wisconsin’s voter id law both violates the Constitution and Section 2 of the Voting Rights Act:

1. This is about the best possible opinion that opponents of voter identification laws could have hoped for. It is heavy on both facts and on law.  It is thoughtful and well written. It finds that a voter id law serves neither an anti-fraud purposes (because “virtually no voter impersonation occurs in Wisconsin and it is exceedingly unlikely that voter impersonation will become a problem in Wisconsin in the foreseeable future”) nor voter confidence purposes. It finds that it burdens lots of voters (up to 300,000) voters. It finds these burdens fall especially on Black and Latino voters and that the reason is does is poverty, which is itself the result of prior legal discrimination.It enjoins enforcement of the law for everyone, and expresses considerable doubt that the Wisconsin legislature could amend the law to make it constitutional.  It is about as strong a statement as one might imagine as to the problems the voter id law.

2. Wisconsin is likely to appeal, and it is unclear how the case will fare in the 7th Circuit and possibly the Supreme Court. (Further making this complicated is that there are state case putting voter id on hold and now pending before the State Supreme Court.)  A special twist is that Judge Posner of the Seventh Circuit made controversial remarks about voter id laws being a means of voter suppression, and expressing regret about his earlier decision in the Indiana voter id case. It is not clear what role, if any, he will play in any appeal.

3. Both the constitutional law and VRA section 2 claims are controversial.  On the con law point, the judge purports to apply the “Anderson-Burdick” balancing test that the Supreme Court applied in upholding Indiana’s voter id law in the Crawford case. The judge purports to apply em>Crawford, but reaches a different result. It is not clear that this is a fair application of that test–which seems to suggest at most that the law be upheld as to most voters but create an “as applied” exemption for a specific class of voters. The judge said that this was not practical in this case given the large number of Wisconsin voters who lack id.  It is not clear that the appellate courts will agree.

4. On the VRA issue, this is the first full ruling on how to adjudicate voter id vote denial cases under section 2.  The key test appears on page 52 of the pdf: “Based on the text, then, I conclude that Section 2 protects against a voting practice that creates a barrier to voting that is more likely to appear in the path of a voter if that voter is a member of a minority group than if he or she is not. The presence of a barrier that has this kind of disproportionate impact prevents the political process from being ‘equally open’ to all and results in members of the minority group having ‘less opportunity’ to participate in the political process and to elect representatives of their choice.” The judge also approaches the causation/results question in a straightforward way.  It is not clear whether the appellate courts will agree or not agree with this approach, which would seem to put a number of electoral processes which burden poor and minority voters up for possible VRA liability.

The Commonwealth Court of Pennsylvania. which struck down that state’s Voter ID in January, has denied the state’s motion to reconsider. Judge denies Commonwealth’s motion in voter ID case:

A Commonwealth Court judge on Monday denied the Corbett administration’s motion to reconsider his ruling overturning the state’s two-year-old voter identification law.

In his 29-page decision, Judge Bernard L. McGinley said the law requiring voters to produce photo ID at the polls failed “to provide liberal access to compliant photo ID” and as a result voters were disenfranchised.

“The evidence showed the voter ID provisions at issue deprive numerous electors of their fundamental right to vote, so vital to our democracy,” wrote McGinley, who struck down the law in January.

The Corbett administration has 30 days to file an appeal to the state Supreme Court.

* * *

Lawyers representing plaintiffs, who said the law was overly burdensome and violated their constitutional rights, praised the ruling.

“The Court confirmed that the photo ID law is unnecessary and disenfranchises hundreds of thousands of people,” said Jennifer Clarke, executive director of the Public Interest Law Center of Philadelphia. “We call on the Governor, the Attorney General and the Secretary of State to stop spending our precious state dollars on defending this law, so dangerous to our democratic system. “

The administration has spent about $6 million in state and federal funds for voter education about the law and $1 million in state funds to the Philadelphia law firm Drinker Biddle to help defend it.

Both sides have agreed that the law will not be enforced during the 2014 primary and general election. (In fact, the law has never gone into effect).

UPDATE: I am remiss not to point out that a court struck down the Voter ID law of the state of Arkansas as unconstitutional last week. Arkansas judge strikes down voter ID law as unconstitutional:

An Arkansas judge declared the state’s new voter identification law unconstitutional on Thursday since it stipulates that voters must meet an additional requirement before casting a ballot.

Pulaski County Circuit Court Judge Tim Fox called the law, which calls for voters to show photo identification cards, “void and unenforceable.”

Arkansas Attorney General Dustin McDaniel’s office said it would work quickly to appeal the ruling on behalf of The Board of Election Commissioners.