Eligible Voters Who Can’t Get a State ID Can Still Vote This November!

Marianne Robbins

2011 Wisconsin Act 23 has required that voters present a specified government or student photo ID in order to vote.  This law has taken away voting rights from many eligible voters who were not been able to obtain Wisconsin ID cards.  In some cases Wisconsin citizens did not have documentation required to obtain Wisconsin ID cards.  In other cases, people were unable to get to Department of Motor Vehicles (DMV) offices to get an ID card.  Now, the decision of U.S. District Court Judge Lynn Adelman in Frank vs. Walker (July 19, 2016), means that no eligible Wisconsin voter will be denied the right to vote in November. Instead of presenting the ID card, voters can sign a declaration stating that they were not able to obtain a State ID card with reasonable effort and they will be able to vote.  The right to vote in Wisconsin has been restored.

When Act 23 was first passed in 2011, it was challenged as a violation of the United States Constitution and Section 2 of the Voting Rights Act.  Judge Adelman concluded Act 23 placed an undue burden on plaintiffs’ voting rights in violation of the Fourteenth Amendment and issued an injunction prohibiting enforcement of the law. The Seventh Circuit Court of Appeals reversed Judge Adelman in 2014 and the voter ID requirement went into effect.  Because Judge Adelman invalidated the entire law he did not address plaintiffs’ claim for relief just on behalf of persons who could not obtain State ID with reasonable effort.

The plaintiffs did not give up. Instead they asked Judge Adelman to decide the issues that he did not reach before.  Initially, Judge Adelman found that he was precluded from addressing these issues, but plaintiffs appealed to the Seventh Circuit.  This time, in  Frank vs. Walker 819 F 3d 384 (7th Cir. 2016), Judge Easterbrook found that the Seventh Circuit’s prior decision did not foreclose remand on the issue of whether Act 23 placed an undue burden on eligible voters who could not obtain a State ID with reasonable effort.

Upon remand, Judge Adelman has now issued a preliminary injunction requiring that Governor Scott Walker and the State of Wisconsin allow eligible voters who have been unable to obtain acceptable photo identification with reasonable effort to sign a declaration and vote in elections on November 8, 2016 and thereafter while the preliminary injunction is in force.

Judge Adelman certified a class of persons who had not been able to obtain acceptable photo I.D. with reasonable effort, rejecting the State’s argument that the class was too vague.  He found plaintiffs would suffer irreparable harm without the preliminary injunction. Judge Adelman cited evidence that many who tried to get Wisconsin ID cards but did not have a birth certificate were denied ID cards and were not informed that there was a petition process for people who did not have documentation to prove name, date of birth and citizenship. He also noted that at least 52 individuals who went through the petition process had been denied Wisconsin ID cards even though there was no evidence that they were not eligible to vote. In addition, some individuals could not make the needed trip(s) to DMV offices because of disability, lack of transportation or legitimate conflicts with work schedules.

Judge Adelman considered the remedy which plaintiffs sought, that defendants allow those who have not been able to obtain the required photo ID to sign a declaration that they have not been able to obtain identification with reasonable effort. He found that defendants had produced no evidence that the electoral process would be undermined by allowing voters who cannot obtain ID with reasonable effort to sign declarations. He explained, “where a state law burdens a constitutional right, the state must produce evidence supporting its claim that the burden is necessary to further the State’s claimed interest,” citing Woman’s Health vs. Hellerstedt, (15-274 Slip Up 19-21, June 27, 2016), the recent United States Supreme Court decision overturning the Texas law which unconstitutionally burdened a woman’s right to choose. In other words, citing a valid purpose for restricting a constitutional right is not enough, the restriction itself must be necessary to achieve that purpose.

Judge Adelman found that it was not possible to implement the declaration procedure by the August 9, 2016 primary election but that there was sufficient time to implement his order prior to the November 8, 2016 election.  The order includes the language to be contained in the form declaration which voters sign, which states their identity and the reason they were no able to obtain the required I.D. card. Judge Adelman further ordered that “no person may challenge the sufficiency of the reason given by the voter for failing to obtain ID.”  The declaration forms will be available at polling places in November.

This national election is vitally important to the future of this country.  There is now no excuse for any person in Wisconsin who is eligible to vote to fail to do so. Act 23 which had denied the right to vote to those unable to obtain the required photo I.D. will no longer prevent voters from casting valid ballots; they can sign a declaration that they were not able to obtain the required photo I.D. with reasonable effort and they can vote.