Opponents of election integrity win temporary victory in Wisconsin


By Hans von Spakovsky for Wisconsin Reporter

WASHINGTON, D.C. — In a decision that ignored applicable law and relied on speculation, a federal district court judge on Tuesday issued an injunction against Wisconsin’s new voter ID law.

Judge Lynn Adelman, a Clinton appointee, former Democratic state senator and former Legal Aid Society lawyer, held that the state’s ID requirement violates Section 2 of the Voting Rights Act because it places “an unjustified burden on the right to vote.” In a confusing claim, Judge Adelman said he wasn’t addressing the argument by the plaintiffs that the law also violated the Fourteenth Amendment, but he then proceeded to outline why he believes the law violates the Fourteenth Amendment.

HANS VON SPAKOVSKY has served on the Board of Advisors of the U.S. Election Assistance Commission and as a member of the Federal Election Commission.

The problem with Adelman’s holding is that the U.S. Supreme Court has already determined voter ID laws like Wisconsin’s do not impose “an unjustified burden” on the right to vote. In 2008 in Crawford v. Marion County Election Board, the Court upheld the constitutionality of an ID law in Indiana even stricter than Wisconsin’s law. The Supreme Court said that since Indiana provided a free ID to anyone who didn’t already have one, “the inconvenience of making a trip to the B(ureau of) M(otor) V(ehicles), gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.”

In fact, Wisconsin provides a free ID just like Indiana does.

While Adelman discussed the Crawford holding in his decision, he claimed it’s “not binding precedent” when it comes to the balancing test that must be applied to a claimed injury to the right to vote and a state statute regulating elections because the majority of the Court was supposedly “fragmented” on this issue. Therefore, Adelman said he could make his own decision on whether the Wisconsin law places an unjustified burden on voters.

Adelman also directly contradicts the Supreme Court’s decision in Crawford when he dismisses the justifications Wisconsin put forward for its voter ID law:

1. Detecting and preventing in-person voter-impersonation fraud;
2. Promoting public confidence in the integrity of the electoral process;
3. Detecting and deterring other types of voter fraud; and
4. Promoting orderly election administration and accurate record-keeping.

The Supreme Court found all of these justifications that were also made by Indiana to be legitimate, yet Adelman throws them out as completely illegitimate — directly violating his duty to follow Supreme Court precedent. He dismisses the Supreme Court’s finding in Crawford where it approvingly cited the Carter-Baker Report on election reform that the “electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters.”

Judge Adelman studiously ignored actual evidence of the effect of voter ID on the turnout of minority voters in other states to conclude that Wisconsin’s voter ID law, even with a free ID, will have a disparate impact on black and Latino voters because it will “impact low-income voters.”

Those “low-income voters” are not a protected class under Section 2 of the Voting Rights Act, which prohibits racial discrimination in voting.

These are exactly the same type of hysterical predictions made eight years ago by “experts” in the federal lawsuits filed against voter ID laws in Indiana and Georgia, all of which have proven to be completely wrong.

The evidence of what has actually happened in those states whose voter ID laws have been in place since the 2008 election show that, contrary to Adelman’s conclusions, minority turnout wasn’t negatively affected by voter ID requirements — in fact, it went up after the voter ID laws were implemented. According to the U.S. Census, Wisconsin’s demographics are almost identical to Indiana’s; in fact, Indiana has slightly larger black (9.4 percent vs. 6.5 percent) and Hispanic (6.3 percent vs. 6.2 percent) populations than Wisconsin.

Finally, by issuing an injunction against the entire law, Adelman sidled past a key point made by the Supreme Court in Crawford.

The Court noted that even if challengers to Indiana’s voter ID law could have demonstrated the law placed an unjustified burden on some voters (which they were unable to do), they hadn’t shown the proper remedy “would be to invalidate the entire statue.” But Adelman was seemingly so intent on throwing out a racially neutral election reform that 99 percent of the voters in Wisconsin can easily meet that he flew right by this cautionary edict saying it would require him to “rewrite” the statute.

Wisconsin’s attorney general, J.B. Van Hollen, has already announced he will appeal the decision to the Seventh Circuit Court of Appeals. Given that the Seventh Circuit previously upheld Indiana’s almost identical law, as did the U.S. Supreme Court, this will hopefully be a short-lived win for the opponents of election integrity and common sense reform in Wisconsin.

Hans von Spakovsky is an authority on a wide range of issues – including civil rights, civil justice, the First Amendment, immigration, the rule of law and government reform — as a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. This column first appeared in The Foundry: Conservative Policy News from The Heritage Foundation.