Voter ID Gets Another Day in Court

By THE EDITORIAL BOARD

Published: November 30, 2013

A federal trial in Milwaukee on Wisconsin’s 2011 voter ID law concluded recently, and the verdict, when it comes, will help define the future of the Voting Rights Act, which has been in question since the Supreme Court gutted a core provision, Section 5, in June. This case could also set an important precedent for lawsuits recently filed against similar laws in Texas and North Carolina.

Related

• Judge in Landmark Case Disavows Support for Voter ID (October 16, 2013)

The Wisconsin law, which is now on hold, is among the strictest in the country. It requires a voter to show poll workers government-issued photo identification, like a driver’s license or passport.

The law’s challengers, which include the A.C.L.U., the League of United Latin American Citizens, the League of Young Voters and several private citizens, sued under Section 2 of the Voting Rights Act. That section, which survived the Supreme Court’s ruling, prohibits state and local governments from imposing any “voting qualification or prerequisite to voting” that has a racially discriminatory effect. The test is whether a law causes minority voters to have “less opportunity than other members of the electorate to participate in the political process.”

The plaintiffs presented substantial evidence that the Wisconsin statute had precisely that effect.

For example, a political scientist testified that it is likely that more than 63,000 residents of Milwaukee do not have the required photo ID, and that black residents are 40 percent more likely than whites not to have such ID. In addition, one-third of those without a photo ID do not have the underlying documents, like a birth certificate, needed to get one. The court heard testimony from several such witnesses, including Lorene Hutchins, a 93-year-old black woman who was born at home in Mississippi at a time when the state’s hospitals refused to accept black patients.

For those living in poverty or on a fixed income, who are disproportionately people of color, even the $20 charge to get a copy of a birth certificate can be unaffordable, and is in practice no different from a poll tax. As is typical in voter ID cases, the state presented virtually no evidence of voter fraud in defending the law. One election official could not recall a single case of identity fraud in his three decades of service to the state.

The law’s backers know their case is weak, and Republican legislators are scrambling to revise the statute to permit indigent voters to take a verbal oath and sign an affidavit that they cannot afford the paperwork needed for a photo ID. But the revision would set no guidelines for determining when someone is poor enough to qualify, and it would put residents in the embarrassing position of having to declare their poverty in public.

State voter ID laws may vary in their particulars, but their underlying purpose is to prevent eligible voters from voting. That point was reiterated when Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit said recently that he had been wrong to uphold an Indiana voter-identification law in 2007.

Such laws are “now widely regarded as a means of voter suppression rather than of fraud prevention,” Judge Posner wrote in a memoir, adding that if he had been alert to the “trickery” of voter ID laws at the time, the case would have come out differently. He may soon have the chance for a do-over. Whichever way the trial court rules, the losing side is sure to appeal to the Seventh Circuit, which includes Judge Posner and his colleagues. Perhaps this time, they will not be fooled.