by Guest Contributor Elise Helgesen of FairVote

On March 6th, the Wisconsin Circuit Court in Milwaukee Branch of the NAACP v. Walker, granted a temporary injunction preventing the state from enforcing a voter ID law in the upcoming primary election. Then, on March 13, a second Circuit Court judge struck down the same voter ID law in League of Women Voters v. Walker. The courts proceeded with similar, yet differentiated, analyses of the law in finding that Act 23, Wisconsin’s 2011 voter ID law, was unconstitutional based on the Wisconsin Constitution’s affirmative right to vote – a right unfortunately not found in the U.S. Constitution.

The holdings of these two cases are important in looking to other states’ voter ID laws. For courts to hold that the right to vote is fundamental, the right to vote must be stated unequivocally in each states’ constitution, and it must be explicitly protected from legislation trying to abridge that right. FairVote supports an amendment creating an affirmative right to vote in the U.S. Constitution. If the right to vote were incorporated not only into every state constitution, but also into the U.S. Constitution, governments would have to prove that such forms of voter ID laws are necessary to a compelling state interest. To justify restrictive voter ID laws that unduly burden qualified voters’ constitutional right to take cast their ballots the legislature would need to put forth a more narrowly tailored regulation – one which did not effectively disenfranchise eligible voters.

Both courts were clear that Act 23 was unlawful; however, both were also clear that voter ID laws could be upheld under different circumstances. The court in League of Women Voters v. Walker stated that, “this court does not hold that photo ID requirements under all circumstances and in all forms are unconstitutional per se. Rather, the holding is simply that the disqualification of qualified electors from casting votes in any election where they do not timely produce photo ID’s satisfying Act 23’s requirements violates Article III, Sections 1 and 2 the Wisconsin Constitution.” Likewise, NAACP v. Walker distinguished Act 23 from other voter ID laws because Act 23 was overly restrictive and did not allow for alternative means of proving identification or of casting a provisional ballot.

In NAACP v. Walker, the court’s analysis centered on the level of scrutiny that should be awarded to a constitutionally enshrined fundamental right. Finding that other courts’ approval of restrictive voting laws were in cases based on a U.S. Constitutional claim, the court in NAACP v. Walker was adamant that when brought under the state constitution, the law could not stand.

Significantly, the court distinguished the Wisconsin case from a similar case brought before the U.S. Supreme Court to challenge the legitimacy of an Indiana voter ID law in Crawford v. Marion County Election Board. The court stated that the case in NAACP v. Walker was “founded upon the Wisconsin Constitution which expressly guarantees the right to vote while Crawford was based upon the U.S. Constitution which offers no such guarantee.”

In NAACP v. Walker, the court also noted that the right to vote’s inclusion in the Wisconsin Constitution necessitated a higher level of scrutiny of Act 23. The court found that strict scrutiny was warranted. This type of scrutiny placed the burden on the state to prove that Act 23 was a regulation narrowly tailored to serve a “proper and compelling government interest.” The court examined evidence based on forty voters’ affidavits describing their hardships in obtaining a voter ID. Noting that the purported interest of Act 23 was to protect the integrity of the election process, the court found that the law was so broad as to burden individuals’ ability to vote.

The court in League of Women Voters v. Walker focused on the express right to vote and how the state legislature lacked the power to restrict that right. The state constitution in Article III § 1 provides that: “Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district.” In § 2 of that same article, the constitution enumerates the only voting regulations that the state legislature may enact, including: to define residency, to provide for voter registration and for absentee voting, to exclude felons and those determined mentally incompetent, and finally, to extend the right to others only by ratification of the people. The court found that Act 23’s strict voter ID requirement was unconstitutional because it was an action going beyond the powers granted to the legislature in the constitution. As the court stated, the “Constitution is a line in the sand drawn by the sovereign authority in this state – the people of Wisconsin – that the legislature, governor, and the courts may not cross . . . .”

Moving forward, it is imperative to support an affirmative right to vote both at the state level and at the national level, so that all Americans’ voting rights are protected. Legislators may act to regulate the nature of elections, but they may not go so far as to override the constitutional right to vote.

FairVote, a national organization based in Takoma Park, Maryland, is a leader in promoting fundamental reform of American elections. Utilizing a combination of research, advocacy, and education FairVote, seeks to ensure that every individual’s vote counts through fair voting systems and fair access to participation. Additionally, FairVote assists in voting rights litigation through a vibrant amicus brief practice and helps local jurisdictions in their implementation of alternative voting systems, such as instant runoff voting.

Elise Helgesen is an attorney currently employed as a Democracy Fellow at FairVote. Before coming to FairVote, Elise interned for the Lawyers’ Committee for Civil Rights Under Law, working on voting rights issues. She also interned for the U.S. Attorney’s Office for the Southern District of Florida. Elise graduated from the College of William and Mary with honors in 2008 with a major in Government. She graduated from the University of Florida Law School with honors in 2011 and was recently admitted to the Virginia State Bar.

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