THE BLOG
10/09/2014 04:24 pm ET Updated Dec 09, 2014

What Wisconsin Has Been Fighting For

UPDATE: On October 9, 2014, the U.S. Supreme Court blocked Wisconsin's ID law. No ID is required to vote on November 4, 2014.

Let's be clear about what Wisconsin has been fighting for and now, absent intervention by the U.S. Supreme Court, will have achieved in the four voter ID cases it has defended. It has been fighting to deny a ballot to any person who cannot present one of a limited number of photo IDs. More specifically, Wisconsin has been resisting any and all alternative procedures to this putative identity verification procedure: checking a photo ID.

Wisconsin isn't the only state with a voter ID law. Thirty-two states have voter ID laws, and many of them have not faced the kind of years-long constitutional and Voting Rights Act litigation Wisconsin has. Why? The reason is simple. Most of these states either: (1) have a broad list of IDs, often including non-photo IDs, and/or (2) have devised an alternative identification procedure or fail-safe, so voters without ID can cast a ballot that will be counted if their identity can be confirmed by alternative means. Even Florida -- where voting rights and efficient election administration have historically gone to die -- has a signature-matching alternative to its voter ID law. That means poll workers ask voters for their IDs, but if they don't have one, the voter can cast and sign a provisional ballot that will be counted if the envelope signature matches the signature in the state's voter registration database. This is far less burdensome for ID-less voters, a population that (based on evidence across a number of states) tends to be older, lower-income, and disproportionately minority. To be sure, there are problems with signature-matching, but nowhere near the problems facing voters under a strict voter ID regime like Wisconsin's. As a consequence, Florida has never had to waste money defending lawsuits claiming and establishing significant disenfranchisement as in the Wisconsin cases.

At present, 15 of the 32 voter ID states use alternative identity verification procedures when the voter doesn't have an ID: Alaska, Connecticut, Delaware, Florida, Hawaii, Idaho, Louisiana, Michigan, Missouri, Montana, New Hampshire, Oklahoma, South Dakota, Utah, and Washington.

• Eight states permit ID-less voters to sign a personal identification affidavit under penalty of law: Connecticut, Delaware, Idaho, Louisiana, Michigan, Missouri, New Hampshire, and South Dakota.
• Four states -- Florida, Montana, Rhode Island, and Washington (for the rare in-person voter) -- also utilize signature-matching to strike a balance between the state's desire to verify the voter's identity and the irrevocable harm of disenfranchising a voter who lacks ID.
• Finally, Alaska and Utah's election codes authorize identity verification through other information and databases; in Oklahoma, a registration database match suffices; and in Hawaii, the voter is cleared if they recite their address and date of birth.

No one would consider this group politically homogenous or even similar and only three of these states have made serious efforts to pass more restrictive ID laws. Due to a recent tightening of its ID law, New Hampshire's affidavit alternative will be eliminated next September. Michigan's legislature passed a strict voter ID law, but Governor Snyder vetoed it, and Missouri's strict voter ID regime was struck down by the state's Supreme Court.

Wisconsin passed on its opportunity to create a fail-safe for ID-less voters. The Wisconsin state legislature was presented with a revision of the ID law that might have resolved the litigation or certain major claims. That bill (AB 493) would have adopted an affidavit alternative by which a voter would be exempt from the ID requirement if he or she affirmed under oath that s/he: (1) "considers himself or herself to be indigent and cannot obtain proof of identification without payment of a fee;" (2) "has a religious objection to being photographed;" or (3) "cannot obtain the documentation required to obtain proof of identification." Though there may be legal problems with requiring statements (1) and (3) of voters, it may well have resolved the litigation. The bill passed the Assembly in November 2013, but State Senate Majority Leader Scott Fitzgerald would not take it up, in hopes that the courts would uphold the most restrictive possible version of the ID law. As of this writing, his gamble seems to have paid off since the Seventh Circuit has rejected the plaintiffs' claims.

So, what has Wisconsin been fighting for? The Walker administration claims the ID law safeguards the integrity of the ballot, but its lawyers also claim that exceedingly few voters will be unable to obtain a voter ID or experience great hardship in obtaining it. This is sort of a paradox. If, as the state has argued, the number of ID-less voters who turn out to the polls is vanishingly small, then they could have been accommodated and verified by an alternative identification scheme. Implicitly, the state's unwillingness to adopt AB 493's exemption or any other alternative identification process signals that they do understand a very large number of Wisconsin voters lack ID (some 300,000 voters, as found by the federal trial court) and that they do not want to verify the identity of all these individuals through viable, alternative means such as signature-matching or other database-matching. Instead, they would rather make these voters jump through hoops or give up and not vote.

On the eve of oral argument before the Seventh Circuit and after nearly three years of litigation, Wisconsin finally did modify its byzantine interlacing of DMV and voting processes by creating an alternative birth verification procedure for voters who need an ID and cannot prove their US citizenship because they lack a birth certificate. This was one of the key bases for the Seventh Circuit's stay of the district court's injunction and ultimate reversal on Monday. This last-minute move begs the question: Why is the state comfortable with the DMV's alternative to providing documentary proof of a U.S. birth, but not signature-matching, an affidavit under penalty of law, or verifying identity based on other information and databases? That's because this new, untested procedure comes far too late to help many (any?) voters in this November's election, and because it still requires those ID-less voters -- the elderly, poor, and/or minority voters -- to jump through hoops, file a newly created petition, and wait perhaps weeks or months for the state to locate their birth certificate or determine none exists. All along, Wisconsin has been fighting to make the exercise of the right to vote a bureaucratic hell when alternative identification processes have proven viable in other states with little to no downside for our most fundamental right, electoral integrity, and the state's scarce financial resources.

Let's be honest: Wisconsin has been fighting to suppress the vote.