In a landmark decision, a federal judge in Milwaukee has struck down Wisconsin's strict voter ID restrictions as both an unconstitutional burden on the right to vote and, for the first time, a violation of Section 2 of the Voting Rights Act based on the law's "disproportionate racial impact and discriminatory result" of depriving "the right of Black and Latino citizens to vote on account of race or color."

Federal Judge Lynn Adelman held that [3] Wisconsin's 2011 Act 23 violated the U.S. Constitution since on balance, the burdens imposed on the voting rights of nearly 300,000 Wisconsin citizens who lack ID -- roughly 9 percent of Wisconsin voters -- are not outweighed by the state interest in stopping a statistically insignificant rate of "fraud." He said that the extensive evidence of the law's impact on eligible Wisconsin voters, and the lack of evidence of voter fraud in the state, led to a different result than the 2008 Crawford v. Marion case, in which the U.S. Supreme Court upheld Indiana's voter ID law.

The decision cut to the heart of the debate over voter ID, highlighting the absolute lack of fraud that might justify voter ID laws, and describing extensive testimony showing the very real impact that the laws would have on hundreds of thousands of otherwise eligible voters, many of whom are people of color.

The only type of fraud the voter ID law would prevent is voter impersonation, yet "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," Judge Adelman wrote. "A person would have to be insane to commit voter-impersonation fraud."

"[I]t is absolutely clear that Act 23 will prevent more legitimate votes from being cast than fraudulent votes," he wrote.

"A disproportionate share of the Black and Latino populations must shoulder an additional burden in order to exercise the right to vote"

Many of the legitimate votes potentially blocked by Act 23, had the law been upheld, would have been those of people of color.

In addition to violating the U.S. Constitution, Judge Adelman found that Wisconsin's voter ID law violates Section 2 of the Voting Rights Act, which still remains on the books after the U.S. Supreme Court last year struck down the pre-clearance provisions in Section 5. This is the first decision finding a voter ID law violates section 2, which prohibits states from imposing a voting restriction that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”

Citing extensive evidence that African-American and Latino voters in Wisconsin were between 1.4 times and 2.6 times as likely as white voters to lack a driver's license or photo ID, Judge Adelman found that Act 23 creates a situation "in which a disproportionate share of the Black and Latino populations must shoulder an additional burden in order to exercise the right to vote."

When Republicans passed Wisconsin's restrictive American Legislative Exchange Council (ALEC)-inspired legislation in 2011, evidence of the legislation's disproportionate impact on people of color was apparent, and the lack of documented evidence of voter fraud in the state was equally apparent. Yet they pushed forward nonetheless -- and in the wake of court challenges to the legislation, Wisconsin Governor Scott Walker and Assembly Majority Leader Robin Vos (until recently the ALEC State Chair for Wisconsin) have vowed to call a special session to pass another version of the law.

Judge Adelman said he would review any changes to the law, yet noted in his decision that "it is difficult to see how an amendment to the photo ID requirement could remove its disproportionate racial impact and discriminatory result."

"A person would have to be insane to commit voter-impersonation fraud"

Besides breaking new ground for voting rights, the decision contains powerful language countering claims from voter fraud hucksters like True the Vote and politicians like Governor Walker and Republican National Committee Chair Reince Priebus, who have claimed [4] that voter fraud is rampant [5] in Wisconsin and can account for one or two percentage points in Wisconsin elections. Based on extensive evidence and expert testimony, Judge Adelman repudiated those claims.

"[C]ases of potential voter-impersonation fraud occur so infrequently that no rational person familiar with the relevant facts could be concerned about them," Judge Adelman wrote. Given that the severe penalties for voter impersonation "are extremely high in comparison to the potential benefits" of one additional vote for a candidate, he wrote, "a person would have to be insane to commit voter-impersonation fraud."

Experts testified that voter ID restrictions do nothing to promote public confidence in the electoral process. In fact, Judge Adelman noted, the way that politicians and right-wing news outlets promote voter ID can actually have the opposite effect, by "creat[ing] the false perception that voter-impersonation fraud is widespread, thereby needlessly undermining the public’s confidence in the electoral process."

“Perhaps the reason why photo ID requirements have no effect on confidence or trust in the electoral process is that such laws undermine the public’s confidence in the electoral process as much as they promote it,” Judge Adelman wrote.

"The disproportionate impact of the photo ID requirement results from the interaction of the requirement with the effects of past or present discrimination"

"This is the first full ruling on how to adjudicate voter id vote denial cases under section 2" of the Voting Rights Act, says election law expert Rick Hasen, a Chancellor's Professor of Law and Political Science at the UC Irvine School of Law. The decision provides new hope that what remains of the Voting Rights Act can still halt new voter suppression measures, although Hasen notes “it is not clear whether the appellate courts will agree or not agree with [Adelman's] approach, which would seem to put a number of electoral processes which burden poor and minority voters up for possible VRA liability."

Judge Adelman held 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," as long as "the disproportionate impact results from the interaction of the voting practice with the effects of past or present discrimination and is not merely a product of chance."

"[T]he reason Blacks and Latinos are disproportionately likely to lack an ID," Judge Adelman wrote, is because in Wisconsin "they are disproportionately likely to live in poverty, which in turn is traceable to the effects of discrimination in areas such as education, employment, and housing."

He noted that Milwaukee (where the greatest number of Wisconsin's people of color live) is one of the most highly segregated cities in the country, and referenced "one study of the Milwaukee labor market, conducted in the early 2000s, which showed that white job applicants received call-back interviews more than twice as frequently as Black applicants, and that even white applicants with criminal records received call-back interviews more frequently than Black applicants."

Wisconsinites who don't have the forms of ID required under the law faced a complicated, costly, and time-consuming process to obtain the necessary identification, burdens that are more substantial for those with lower incomes than middle- and upper-class citizens. For example, 90 of the 92 Department of Motor Vehicle offices in the state close before 5:00pm, so a person must take time off from work, often foregoing pay, in order to get an ID. Many eligible voters must visit multiple government offices to gather necessary documents like birth certificates, requiring even more time off work. Because those without ID don't drive, they often rely on public transport, which in many cases won't go to the necessary agencies. 

Studies show that "even small increases in the costs of voting can deter a person from voting, since the benefits of voting are slight," so these burdens, which disproportionately affect people of color, can have the effect of suppressing the vote.

Voter ID Unlikely for 2014 Elections

"We are pleased the court ruled on the side of protecting every American's right to vote," said Mike Wilder, co-chair of the Wisconsin African-American Roundtable. "At a time when Big Money and other cheaters are trying to hijack our democracy, it's important we remove the barriers to voting. We need every voice heard for a real democracy."

Wisconsin's Republican Attorney General J.B. Van Hollen has also vowed to appeal Judge Adelman's decision to the 7th Circuit. However, because the ruling has broken new ground, its fate on appeal is an open question -- although the appeal does become more interesting given that it could appear before 7th Circuit Judge Richard Posner, who last December expressed regret [6] for an earlier decision upholding Indiana's voter ID law.

Judge Adelman's decision adds a federal layer to Wisconsin's contentious voter ID battles. A state court blocked the law in 2012 as a violation of the Wisconsin constitution (three other courts have done the same, most recently in Arkansas. [7]) An appeal of that state court decision was argued before the Wisconsin Supreme Court earlier this year. However, even if the Wisconsin Supreme Court were to uphold the law, it would remain blocked thanks to Judge Adelman's ruling.

Given the timeline for an appeal of the federal decision, it appears unlikely that voter ID will be in effect for the 2014 elections.