Second Judge Strikes Down WI's ALEC-Inspired Voter ID Law

A state judge has declared Wisconsin's American Legislative Exchange Council-inspired voter ID law unconstitutional, making him the second judge in one week to block the law's unnecessary burdens on the right to vote.

"The people's fundamental right of suffrage preceded and gave birth to our Constitution," wrote Dane County District Judge Richard Niess, "not the other way around."

The judge rebuffed assertions by Governor Scott Walker and legislative Republicans that they possessed the authority to impose new burdens on voting. "[D]efendants' argument that the fundamental right to vote must yield to legislative fiat turns our constitutional scheme of democratic government squarely on its head," he wrote.

"A government that undermines the very foundation of its existence -- the people's inherent, pre-constitutional right to vote -- imperils its legitimacy as a government by the people, for the people, and especially of the people. It sows the seeds for its own demise as a democratic institution."

The case was brought by the League of Women Voters and tried by the law firm Cullen, Weston, Pines & Bach.

Judge Niess' decision comes less than a week after another Dane County judge temporarily enjoined the same voter ID law -- Act 23 -- on grounds it likely violated the state constitution, but only until that court could hear a full trial. Niess' decision, also decided under the Wisconsin Constitution, permanently invalidates the law. Governor Walker's Department of Justice says they will quickly appeal the decision.

Voting Protected by Wisconsin Constitution

Article III, Section 1 of the Wisconsin Constitution provides that all state residents who are U.S. citizens and over age 18 may vote, and Section 2, according to the decision, "authorizes the government to exclude from voting those otherwise-eligible electors (1) who have been convicted of a felony and whose civil rights have not been restored, or (2) those adjudged by a court to be incompetent or partially incompetent, unless the judgment contains certain specifications."

According to Judge Niess, Section 1 and 2 provide the exclusive basis for creating laws that implement the constitutional requirements for voting. "The government may not disqualify an elector who possesses those qualifications on the grounds that the voter does not satisfy additional statutorily created qualifications not contained in Article III, such as a photo ID," he wrote.

"By enacting Act 23's photo ID requirements as a precondition to voting, the legislature and governor have exceeded their constitutional authority."

Wisconsin passed Act 23 in May on a contentious, nearly party-line vote. Four lawsuits challenging the law have since been filed. Wisconsin Republicans assert that the law should be upheld because the U.S. Supreme Court decided in 2008 that Indiana's relatively similar voter ID law did not violate the U.S. Constitution. However, two of the four lawsuits are challenging Act 23 under the Wisconsin Constitution which, unlike the U.S. Constitution, expressly protects the right to vote. Wisconsin's voter ID law is also more strict than Indiana's, and evidence indicates it will place more burdens on a greater number of people.

Voter ID's ALEC Roots

Wisconsin's voter ID law bears many elements of the ALEC model Voter ID Act. ALEC began to focus on voter ID shortly after the highest general election turnout in nearly 60 years swept America's first black president into office with strong support from college students and African-Americans. Soon after the 2008 elections, "Preventing Election Fraud" was the cover story on the Inside ALEC magazine, and ALEC corporations and politicians voted in 2009 for "model" voter ID legislation.

Around 34 voter ID bills modeled after the ALEC template were introduced in 2011. Those bills have been coming under increasing scrutiny in recent months.

Judge Niess' decision came on the same day that the U.S. Department of Justice blocked Texas' ALEC-inspired voter ID law on grounds it would suppress the Latino vote. Last December, the D.O.J. blocked South Carolina's voter ID bill as discriminatory against people of color. Texas and South Carolina are two of several states with a history of discrimination requiring federal pre-clearance for changes to voting laws or procedures under the 1965 Voting Rights Act. Wisconsin is not subject to pre-clearance.

"The right to vote belongs to all Wisconsin citizens"

While last week's state court decision by Judge David Flanagan focused on how the voter ID law "is addressed to a problem which is very limited" and "fails to account for the difficulty its demands impose upon indigent, elderly and disabled citizens," Judge Niess issued his decision based solely on the legislature's constitutional authority to regulate voting. "It is not necessary to consider the human cost of photo ID requirements in order to expose their constitutional deficiencies," he wrote. "They are unconstitutional on their face." But, Judge Niess wrote, "there is no harm in pausing to reflect on the insurmountable burdens facing many of our fellow constitutionally qualified electors should Act 23 hold sway."

"Mostly they would consist of those struggling souls who, unlike the vast majority of Wisconsin voters, for whatever reason will lack the financial, physical, mental, or emotional resources to comply with Act 23, but are otherwise constitutionally entitled to vote."

While noting that "where it exists, voter fraud corrupts elections and undermines our form of government," Niess stated that "voter fraud is no more poisonous to our democracy than voter suppression. Indeed, they are two heads on the same monster."

Niess wrote:

Where does the Wisconsin Constitution say that the government we, the people, created can simply cast aside the inherent suffrage rights of any qualified elector on the wish and promise -- even the guarantee -- that doing so serves to prevent some unqualified individuals from voting?

It doesn't. In fact, it unequivocally says the opposite. The right to vote belongs to all Wisconsin citizens who are qualified electors, not just the fortunate majority for whom Act 23 poses little obstacle at the polls.

The article originally stated that Judge Niess was a federal judge. The error has been corrected.


Wisconsin is among several states that have court cases pending regarding the validity of laws requiring voters to present government-issued photo identification in order to vote. One of these states, South Carolina, will have its case heard by the United States Supreme Court. South Carolina is one of nine states that is required under the Voting Rights Act to submit changes in voting laws to the Department of Justice for preclearance. This is largely based on those states and some other entities' previous disenfranchisement of African Americans through poll taxes. The United Stats Supreme Court declared poll taxes unconstitutional in Harper v. Virginia Bd. Of Elections, 383 U.S. 663 (1966), writing 'We conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax...Our cases demonstrate that the Equal Protection Clause of the Fourteenth Amendment restrains the States from fixing voter qualifications which invidiously discriminate." Thus, Harper v. Virginia Bd. Of Elections established the standard that laws may not "invidiously discriminate" against any class of voters. However, in Crawford v. Marion County, 553 U. S. 181 (2008), the United States Supreme Court ruled that the heavy burden of proof required by the facial challenge, that is, a challenge that seeks a ruling applicable in all circumstances, had not been met and ruled "In sum, on the basis of the record that has been made in this litigation, we cannot conclude that the statute imposes 'excessively burdensome requirements' on any class of voters." It remains to be seen which case or cases the United States Supreme Court will cite in the South Carolina case or whether it will pave a new path. However, given that, according to the Web site of the Brennan Center, the Department of Justice has also rejected voter identification laws of Texas, (, retrieved March 13, 2012), other states may follow.