Supreme Court’s blockage of WI voter ID law only temporary, election reform expert says

By Adam Tobias | Wisconsin Reporter

MADISON, Wis. — The U.S. Supreme Court on Thursday may have blocked Wisconsin’s voter identification law, but an election reform expert is calling the decision purely procedural and expects the requirement to be in place at some point in the future.

The high court didn’t give a reason for its decision in a brief order overruling the U.S. Seventh Circuit Court of Appeals, but three of the nine justices who dissented said there is a “colorable basis” for the court’s conclusion due to the proximity of the upcoming general election Nov. 4.

Justices Samuel Alito, Antonin Scalia and Clarence Thomas, who all lean conservative, noted it’s particularly troubling that thousands of absentee ballots had been sent out before the Seventh Circuit Court’s ruling Sept. 12 and without any notification that proof of photo identification must be submitted.

Hans von Spakovsky, manager of the Heritage Foundation’s Election Law Reform Initiative, told Wisconsin Reporter on Friday the statement by the three justices shows the timing of Wisconsin’s voter ID law is the only real issue.

“It’s one of these situations where changing the rules for the election this close to the election doesn’t make sense, so I don’t think anybody should read anymore into it than that,” said von Spakovsky.

“I think in the long run, Wisconsin’s going to get a positive order from the Supreme Court, because look, the Wisconsin law is so similar to Indiana’s, I don’t see how they could come out any differently,” he added.

The Supreme Court upheld Indiana’s voter ID law in 2008, arguing the safeguards were “unquestionably relevant to the state’s interest in protecting the integrity and reliability of the electoral process.” The Seventh Circuit Court on Sept. 12 concluded Wisconsin’s voter ID law was materially identical to the Indiana law.

Von Spakovsky also pointed to a panel of three federal judges that upheld South Carolina’s voter ID requirement in 2012, but delayed enforcement because the decision was made less than a month before the presidential election.

Wisconsin Attorney General J.B. Van Hollen, however, doesn’t want to wait that long.

The state’s top law enforcement official told Wisconsin Reporter in a statement Friday his office “will be exploring alternatives to address the Court’s concern and have voter ID on election day.”

“I believe the voter ID law is constitutional, and nothing in the Court’s order suggests otherwise,” said Van Hollen, a Republican.

But Rick Esenberg, president and general counsel for the Wisconsin Institute for Law and Liberty, isn’t confident the Supreme Court will allow the state to enforce the law by the election.

“They basically have to move for reconsideration and that’s always a difficult thing to do,” Esenberg told Wisconsin Reporter. “Judges kind of have this instinctual reaction against being asked to change their minds. And it’s not wrong that they have that. I mean, their job is to make decisions, and if you’re constantly revisiting your decisions again and again and again, you don’t get any work done.”

Thursday’s order places Wisconsin’s voter ID law on hold until the Supreme Court makes a final ruling on the case or turns down an appeal. If the Supreme Court decides not to take the case, the law becomes enforceable, according to Esenberg.

“It’s more likely than not that we’ll have voter ID,” Esenberg said.

Republican Gov. Scott Walker signed the voter ID requirement into law in 2011, but it was blocked after a series of lawsuits and court cases. The state was still able to enforce the law for a low turnout primary election in February 2012 without any major reported incidents.

Opponents of the law say requiring photo identification disenfranchises minorities, the elderly and other voters who cannot afford or easily obtain an ID. Others have also claimed the timing of the Wisconsin’s law would have put additional hardships on government workers and made it more difficult for the state to inform all voters of the changes.

“Thousands of Wisconsin senior citizens and absentee voters will get to vote now,” State Rep. Brett Hulsey, D-Madison, said Friday in a news release. “I applaud the six justices that saw that a grave injustice was about to occur.”

But a study by the Heritage Foundation has found that states with ID laws have experienced a higher voter turnout with minorities. Georgia and Indiana, which implemented voter ID laws in 2008, both recorded a higher turnout for the presidential election than many other states without ID requirements. Those turnout numbers also include minorities.

Others have also been quick to debunk the theory that Wisconsin’s voter ID law would suppress voters because the state was willing to give out identification cards for free.

“I think Wisconsin has done enough, the voter ID law is constitutional and it doesn’t violate the Voting Rights Act,” Esenberg said.

Some opponents argue there is not enough documented voter fraud to justify implementing photo ID laws.

The Supreme Court thinks otherwise.

The high court in 2008 said flagrant examples of voter fraud have been documented throughout the nation’s history by respected historians and journalists. The instances of such fraud “demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election,” according to the Heritage Foundation’s report.

A different study by the Heritage Foundation also has found numerous examples of voter fraud in the country, including several cases in Wisconsin.