Posted by Brendan Fischer on May 30, 2013

A Wisconsin appellate court has overturned one decision by a lower court finding the state's voter ID law unconstitutional, but the legislation remains blocked, with a separate challenge to the law pending before a different appellate court. Despite upholding the voter ID law, the judge deciding today's case appeared to imply that there could be a different outcome for a challenge that provides more evidence of the law's burdens on the right to vote.

Writing for a three-judge panel, Judge Brian Blanchard of the 4th District rejected arguments by the League of Women Voters that the voter ID law imposed additional voter qualifications beyond those included in the Wisconsin Constitution or that, based on the evidence presented in the case, its requirements were so burdensome as to be unreasonable.

But in a lengthy footnote, Judge Blanchard distinguished the case from another challenge to the law, filed by the NAACP and the immigrant rights group Voces de la Frontera, that provides more extensive evidence that a voter ID requirement would "severely burden a significant number of qualified voters but is not reasonably necessitated or designed to deter fraud or otherwise effect an important government interest."

According to Judge Blanchard, plaintiffs in the NAACP case "assert that they have shown that 'over 300,000 Wisconsin electors lack an acceptable photo ID' and that 'procuring a DMV Photo ID can be a frustrating, complex, and time-consuming process.' In contrast," he wrote, "here the League relies on no such evidence on these topics and challenges the photo identification requirement only under Article III of the state constitution."

Judge Blanchard Upholds Law, But Suggests Voter ID Burdens Exist

Article III of the Wisconsin Constitution provides that all state residents who are U.S. citizens and over age 18 may vote, with exceptions in Article II only for felons and those judged incompetent. The League argued that requiring ID at the polls constituted an additional voter qualification beyond what is provided in the constitution, and therefore, enacting the law exceeded the legislature's and governor's constitutional authority. In March of 2012, Dane County Judge Richard Niess agreed and struck down the law.

Judge Blanchard held that legal precedent allowed the legislature to enact laws allowing election officials "to ascertain whether the person offering to vote possessed the qualifications required."

But the judge was careful to note that the League presented minimal evidence to demonstrate that the law's burdens would be so onerous as to constitute an additional qualification not mentioned in the constitution.

"[T]he League relies on no expert opinion testimony or other type of evidence to demonstrate 'considerable expense and inconvenience' to even 'some' citizens," he wrote.

Judge Blanchard also found that, based on the evidence presented, the restriction is not, "on its face, so burdensome that it effectively denies potential voters their right to vote, and is therefore constitutionally 'unreasonable.'"

"We express no opinion as to whether such an argument might have merit if supported by fact finding regarding the burdens imposed," Blanchard wrote. "However, in this facial challenge in which the League does not rely on any fact finding or evidentiary material, the implied argument falls short."

But this does not mean the evidence does not exist.

In a footnote, Judge Blanchard wrote:

"amici curiae Dane County and The Wisconsin Democracy Campaign submitted limited evidentiary materials below in the form of four affidavits. Those affidavits, if admissible and credited, would support a conclusion that the photo identification requirement presents meaningful burdens to at least some voters. However, the League does not rely on these evidentiary materials in its arguments."

Judge Blanchard's ruling, which overturned the lower court's grant of summary judgment to the League of Women Voters, will send the case back to the trial court. During those proceedings, Judge Blanchard's decision indicates there could be a different outcome if the League presents more extensive evidence of the law's burdens.

Different Outcome for Different Challenge?

The League had mounted a "facial" challenge to the law -- meaning the law itself was unconstitutional, rather than its effect or application -- which involves a very heavy burden. The other case from the NAACP and Voces de la Frontera relies on Due Process and Equal Protection arguments, and as Judge Blanchard noted, presents extensive evidence that a voter ID requirement imposes significant burdens on hundreds of thousands of Wisconsin voters.

The NAACP case is currently pending before the 2nd District Court of Appeals in Waukesha. That case is on appeal from a decision by Dane County Judge David Flanagan, who issued a permanent injunction against the law in July 2012. That injunction still stands, so despite Judge Blanchard's decision, the law remains blocked.

Two other challenges to Wisconsin's voter ID law remain pending in federal court.

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