Wisconsin State Supreme Court engage in some extreme Judicial Activism to save voter id law

[Gothmog]

The Wisconsin state supreme court upheld the Wisconsin voter id law but looked seriously at the poll tax issue and decided that fees paid to obtain the documents necessary to get a “free” id are not allowed and may be poll taxes. In order to find the Wisconsin law constitutional, the Wisconsin state supreme court engaged in some serious judicial activism and created a waiver where a voter who does not have a document necessary to get a free id can file for a waiver. http://wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=118667

¶69 In order to harmonize the directive of Wis. Stat. § 343.50(5)(a)3., which says no fees; statutes such as Wis. Stat. § 69.22, which impose payment of fees; and Wis. Admin. Code § Trans 102.15(3)(a), which requires certain documents for which electors may be required to pay fees to government agencies, we construe § Trans 102.15(3)(b). We do so to preserve the constitutionality of § 343.50(5), as follows: One who petitions an administrator pursuant to § Trans 102.15(3)(b) for an exception is constitutionally "unable" to provide those documents and they are constitutionally "unavailable" to the petitioner within our interpretation of § Trans 102.13(3)(b), so long as petitioner does not have the documents and would be required to pay a government agency to obtain them.[1]

¶70 Stated otherwise, to invoke an administrator's discretion in the issuance of a DOT photo identification card to vote, an elector: (1) makes a written petition to a DMV administrator as directed by Wis. Admin. Code § Trans 102.15(3)(b) set forth above; (2) asserts he or she is "unable" to provide documents required by § Trans 102.15(3)(a) without paying a fee to a government agency to obtain them; (3) asserts those documents are "unavailable" without the payment of such a fee; and (4) asks for an exception to the provision of § Trans 102.15(3)(a) documents whereby proof of name and date of birth that have been provided are accepted. § Trans 102.15(3)(b) and (c). Upon receipt of a petition for an exception, the administrator, or his or her designee, shall exercise his or her discretion in a constitutionally sufficient manner.[2]

¶71 We further conclude that filing a Wis. Admin. Code § Trans 102.15(3)(b) petition for an exception with a DMV administrator, as set forth above, is not a severe burden on the right to vote. Accordingly, because the burdens of time, inconvenience and costs upon electors' right to vote are not severe under our interpretation of § Trans 102.15, we apply a rational basis level of scrutiny in determining whether Act 23 is constitutional. Mary F.-R., 351 Wis. 2d 273, ¶35; Wagner, 263 Wis. 2d 709, ¶84. As the Supreme Court has explained, it is erroneous to assume that a law that regulates voting must be subject to strict scrutiny. Burdick, 504 U.S. at 432. Strict scrutiny applies only when a statute imposes a severe burden on the exercise of the franchise. Id. at 434.

I read this exception to include any and all documents including a birth certificate from a state other than Wisconsin. This is a major change to the law that makes it a great deal easier to live with and guts the voter suppression effects of the law. There is great language in the opinion on the poll tax issue that will be helpful for the Veasey plaintiffs in the Texas voter id case.

[Scuba]

1. Clear as mud. Does this mean a voter still has to jump through hoops to get an ID? Getting forms ...

... can require travel if one doesn't have internet access. Para 71 says this is "not a severe burden". Well, it's not to the average Joe in Appleton, but he probably already has an ID. It's the poor old lady living with her daughter in Milwaukee who will be burdened.

Further, Para 70 seems to leave the approval of the waiver up to the local DMV Administrator. Seems like an opportunity for shenanigans, not that I wouldn't trust the current Administration (wink, wink).

Also, it's hard to imagine the average voter reading the three paragraphs above and having any clue what they should do. Will Walker's Administration make it easier for voters to understand? His past actions suggest otherwise.

[Gothmog]

2. Some of this is to be determined

First, this may be an exercise in futility in that the law is still subject to an injunction in federal court and the DOJ just filed a rather well written amicus brief in that case. I will post links to the brief later (DU is not allowing me to cut and paste this minute). The evidence that going to the Department of Transportation offices is a burden is one of the basis for the Section 2 claim under the Voting Rights Act and the equal protection claim under the 14th Amendment. The Wisconsin law will never go into effect unless the 7th Cir. or the SCOTUS reverse the opinion of the federal judge in this case and that opinion is well written. In the Texas voter id case, the experts for the Department of Justice are documenting the costs of getting free ids for both the Section 2 claim and the equal protection claim under the 14th Amendment.

Second, I assume that there will be a form for the waiver prepared so that the voters will not have to do anything but sign the request. That is what is suppose to be happening in South Carolina. I believe that the voter will have to go to the DOT offices to get his/her picture taken for the free id. The opinion seems to state that this is not a burden. Again, this is only an issue if the federal injunction is lifted.

The language in the Wisconsin state supreme court opinion is good for the Texas voter id case on the poll tax issue.

I hope that this helps.